If your employee is off work after an accident that isn’t their fault this can cause untold problems for you and your business.
At the very least, you may want to do the right thing by your valued staff member and ensure that they are paid during any time off – but you should protect your business’s interests when doing so.
You can do this by ensuring that you have included a clause in your standard contracts of employment that creates the obligation on the employee to recover in their compensation claim any company sick pay which is over and above the statutory minimum entitlement.
Where you do not have such a pre-existing term, known as a ‘recoupment clause’, it is still possible to make an ex gratia payment to the employee for any amount, with the staff member being obliged to recover the sum voluntarily paid. However, you will have to ensure that this is properly drawn-up and the employee is able to seek independent advice on the agreement to ensure it is legally binding.
It would be preferable not to have to get into this discussion with your employee when they are likely to be recovering from a traumatic event or injury so a good tip would be to ensure that the recoupment clause is both incorporated and highlighted to the employee on commencement of employment with the business and again when you are notified of the absence and the reason for same.
If you find that you need to now amend your contracts to include the term, you should ensure that you send all employees a copy of the changes that have been made so that they are fully aware of them and how your policies will operate in the future.
When our specialist Personal Injury team is instructed by a client to pursue the recovery of damages resulting from an accident, we have to ensure that all losses that have been incurred by the victim of the incident are fully recovered.
Where a person has been unable to work following an injury, the solicitor representing them should check with the employer if any monies paid are to be claimed from the person who caused the injury or to confirm the amount of any loss of earnings claim.
In practice, it is the sum paid by the employer less statutory sick pay that is included in the calculation of the losses claimed. It would be useful to discuss with your accountant a standard approach to confirming the extent of the losses that have been incurred so that you can present the information in as clear a format as possible so as to minimise disputes and ensure a full recoupment is achieved as promptly as possible.
If you are in any doubt about your obligations and arrangements you should always seek specialist legal advice.