Over its short life, Elgin’s ‘Dandy Lion’ statue has stirred up controversy in several ways.
For its supporters, the 10-foot top-hat-wearing big cat (with fishtail) makes a positive contribution to the makeover of the town centre as a whole. It is striking and has individuality – almost seeming to be shouting: “I don’t care what others think!” The ‘Haters Gonna Hate’ tag applied to it seems appropriate.
It has been designed with an eye on a number of local historical themes:
- Tweeds and Cashmere (Johnstons of Elgin)
- The wealth and elegant fashion of the early 19th Century in Elgin, when local benefactors like Andrew Anderson (Anderson’s Institute) and Alexander Gray (Dr Gray’s Hospital) founded important Elgin institutions.
- The fisherfolk who sold their wares in the local market.
- The men and women who came looking for agricultural work and signalled their availability by wearing a dandelion (as the Dandy Lion has in his buttonhole).
Well, it has been branded ‘cultural vomit’ and it has already given rise to at least one climbing-related accident.
No one likes to see money wasted and only time will tell whether this conspicuous addition to the Elgin’s central pedestrian zone will be regarded as a good investment or more like throwing money away.
As an employer, it is easy to throw money away that you pay out in wages to your employees.
More specifically, that can be in a situation where your employee is off work due to personal injury and you keep paying their wages even though you are getting no benefit in return. In this article, we will consider how you can protect your position and explain why sorting out arrangements ahead of time is in the interests of employers and employees alike.
As you may know, Moray Claims / Grigor & Young deals with compensation claims for folk who have suffered personal injury as the result of an accident.
A common element in personal injury claims is wage loss.
The injured person may be unfit for work for days or weeks (or longer) following an accident.
If they are lucky, their employment contract may entitle them to receive full pay for the time they are off sick. Many employees, however, will receive reduced wages or statutory sick pay. They will incur a personal loss of wages which they will need to try to recover as part of their personal injury claim.
Some people are injured at work and their claim may lie against their own employer.
More exactly, it’s against their employer’s EL (“employers’ liability”) insurers.
It’s important to note that what we are about to explain does not apply to this situation – where you, as the employer, were responsible for your employee being off work. In other words, where their accident was due to your fault or breach of duty, as employer.
We’re talking about cases where your employee is injured and off work due to someone else’s fault.
In that scenario, as employer, you can probably feel the pain associated with the following realisation:
If your employee’s employment contract entitles them to some pay while they are off work, you are going to be paying them but getting no benefit for that payment.
You’ll be paying them for not working. That’s not your employee’s fault but it’s not your fault either.
Why should you be left out of pocket?
You don’t need to be left out of pocket. But you need to be a bit canny about it.
What you need to make sure is that all your employees’ contracts contain a clause which entitles you, as employer, to claim back from a third party – as part of the employee’s claim against a third party who has been negligent in causing their injury – wages you have paid out during a period of employee absence following the accident.
If you don’t have a specific clause in your employee’s contractual terms, you can’t claim back ‘absence wages’ from the third party. The law requires there to be a clause in the contract before any such right against a third party will be enforceable.
What if your employees’ contracts do not currently contain such a clause?
It’s not too late. You could agree a variation of the contract, in writing, so as to insert the necessary clause. There is no down side for the employee. In fact, if you are an employee reading this and you think your contract lacks a clause of this sort, why not tell your employer about it? They should thank you.
We’re not wishing injury on anyone but it’s best to be prepared for the unexpected. Taking action on this point can close a potentially annoying and expensive loophole for the employer – which is also good for the employee by keeping the employer as happy as possible in the difficult times which will follow if the employee is injured and off work for any period of time.
‘Wage loss for an employee’ ends up with a broader definition than you might expect.
If proper cover is provided by the clause we suggest, it means that an injured employee’s claim for wage loss may be partly made up of their personal losses (due to them) and their employer’s losses (payable back to the employer).
As an example, take an injured person who normally earns £200 per week and, due to an accident caused by a third party, is off work for 4 weeks, receiving £150 per week for that period from their employer. Subject to the appropriate clause being in place, they will have a personal wage loss claim of (4 x £50) £200 and their employer will have the right to include a claim for (4 x £150) £600 for the employer’s loss.
It can also mean that the “employee’s” claim for wage loss may only in fact be a claim for loss suffered by the employer.
Returning to the above example, if the injured person receives their full £200 while they are off, they have suffered no loss, despite being off 4 weeks. However, their employer will be down by £800 – which they can claim back, if they have the benefit of this clause.
What does such a clause look like?
Multiple variations are possible. One such example would be:
If a period of absence due to incapacity is or appears to be occasioned by actionable negligence, nuisance or breach of any statutory duty on the part of a third party in respect of which damages are or may be recoverable, you [i.e. the employee] shall immediately notify [the Employer] of that fact and of any claim, settlement or judgment made or awarded in connection with it and all relevant particulars that [the Employer] may reasonably require. You shall, if required by [the Employer], co-operate in any related legal proceedings and refund to [the Employer] that part of any damages or compensation recovered by you relating to the loss of earnings for the period of absence as [the Employer] may reasonably determine less any costs borne by you in connection with the recovery of such damages or compensation, provided that the amount to be refunded shall not exceed the total amount paid to you by [the Employer] in respect of the period of absence.
How we can help
If you have any questions arising from this article, please get in touch with us. All initial enquiries are free of charge and without obligation. You can contact us on 01343 544077 or send us a Free Online Enquiry.
The point of this article is to alert employers and employees to a loophole in contracts of employment which is potentially in the interests of neither of them – and where a solution is possible and straightforward to achieve. We wanted to show how a contractual wage loss clause helps employers.
Please note that, as we are lawyers and we like to use disclaimers where we can, you must not rely upon the contents of this article as “legal advice” forming the sole basis of any action you decide to take as a result of reading the article. Every situation is different and it is important to get legal advice which is tailored to your individual circumstances. If you do decide to take action based purely on the contents of this article, we can’t stop you but don’t blame us if it goes wrong in some way and you don’t achieve the outcome you were hoping for.
Note: This article was originally published on the Moray Employment Law website in January 2017