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Contractor Doctor: I was injured on contract then terminated. What are my options?

Dear Contractor Doctor,

I am a locum contractor working via my own limited company, and have been working on a six-month contract with the same client. I recently sustained an injury at work when at my client’s site.

I was given one day's notice of termination of my contract, despite being unfit to return to work because of the injury. I have not been paid for the few hours I worked on the day of the injury, nor for the week's termination period due under my contract. My agency and client do not want to take any responsibility for the injury and they both claim that I am self-employed.

Can my client terminate me if I suffered an injury at its site meaning I could not work?

Thanks

Jackie

Contractor Doctor says:

“The contractor does not have valid grounds to object to having been given notice because (s)he has not been able to work,” explains Roger Sinclair of contractor legal specialist Egos. “However, if the client can be shown to be at fault, then the contractor may have grounds for compensation.”

The challenge facing the contractor would be to prove where fault for the injury lies, and a successful claim would depend on whether the contractor can find evidence that fault lies with the client.

“The injury may be something for which the client carries some fault, or it might not,” continues Sinclair. “Engaging a personal injury specialist to assist with a claim and establish fault may be one solution.”

And although not designed to give benefits, the client’s liability insurance provides a fund from which any losses can be paid in the event that it is successfully sued for the injury.

Duty of care to provide a safe working environment

David Armstrong, of personal injury specialist legal practice Berrymans Lace Mawer, takes up the story.

“Depending on the nature of the contractual relationship, the contractor maybe regarded as an employee but even if not, the client owes a duty of care to provide a safe place of work,” says Armstrong. “That duty cannot be avoided and applies to every workplace the client controls and covers everyone who works there”

Depending on the nature of the contractual relationship, the contractor maybe regarded as an employee but even if not, the client owes a duty of care to provide a safe place of work

David Armstrong, Berrymans Lace Mawer

“The nature and extent of the duty of care depends upon the circumstances of the accident. Generally speaking, it will turn on whether or not the risk of injury was reasonably foreseeable and the steps taken by the client to prevent that risk. A specialist personal injury solicitor will be able to properly advise on this.”

Compensation for loss of earnings

“If fault can be proved, the contractor may have the right to be put back into the position they would have been in if the injury had not occurred,” explains Sinclair. “This could include making a claim against the client, which should be covered by the client’s liability insurance, for loss of earnings during the period that the contractor could not work due to injuries sustained on the client’s site.”

If fault can be proved, the contractor may have the right to be put back into the position they would have been in if the injury had not occurred

Roger Sinclair, Egos

The contractor has a ‘duty to mitigate’, which would mean them seeking a fresh contract as soon as they had recovered sufficiently to return to work, and only seeking compensation for loss of earnings up to the point new work was found.

“It is also possible that the fault for the incident is shared, in that an action or omission of action by the contractor may have contributed to the incident taking place. In a case of ‘contributory negligence’ the compensation would be awarded on a pro rata basis - If the contractor was 50% at fault, they would receive 50% of the compensation.”

Good luck with your contracting!

Contractor Doctor

Published: 04 May 2012

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