Legal Update Summer 2018

Circular No: NCP/138/18
Our Ref: LA/27/07/2018
27th July 2018

To: Branches, Regional Councils & Regional Offices
Dear colleague,
Summer Legal 2018 Update:

1. Without your help the government is going to penalise the injured
Unfortunately injuries happen at work. Whether it is because employers fail to put in place and enforce proper systems or because health and safety isn’t given the priority it should, our Union through our solicitors Thompsons end up helping hundreds of RMT members every year who have been injured through no fault of their own.
However, while at present the law means we can hold employers to account if they are to blame for the injuries and ensure that whoever caused the injury picks up the bill for legal fees, the government want to change this.
In March, the government introduced the Civil Liability Bill into the House of Lords. The bill has now passed through the House of Lords and is due into the House of Commons from the 4th of September. The Civil Liability Bill is said by the government to be about tackling whiplash ‘fraud’ from road accidents. However, ‘a package of measures associated with the bill’ (for which read ‘hidden from view’!) will deny access to justice to hundreds of thousands of people injured at work or on the roads every year whose cases have nothing at all to do with whiplash.
Currently, anyone who is injured in a workplace accident or on the road can claim back the cost of getting legal advice if their injuries are worth more than £1,000. Whether the claim falls into the ‘small claims limit’ of £1,000 or outside it is calculated on the value of the injured person’s compensation for pain and suffering. If the pain and suffering compensation is £999 or less, then regardless of what wage loss or expenses they may have had, the case is dealt with in the small claims court.
The government want to use hidden powers to increase the small claims limit from £1,000 to £2,000 for all cases, including accidents at work (which have nothing to do with whiplash), and to £5,000 for all Road Traffic Accidents (not just whiplash). That means that in any case where the pain and suffering value is less than £2,000 or £5,000 the injured will either have to take on the insurers on their own or pay for a lawyer to help them from money that is meant to be compensation for their injuries and losses.
£2,000 and £5,000 is a lot of money for most workers, especially for our members working in the rail, maritime or transport industry, yet the government think it’s acceptable to leave people injured through no fault of their own to fight well-funded insurers on their own.
If this goes ahead as the government plans, it is estimated that at least half a million people every year will be left on their own and trade union legal services will be undermined. By this hidden move, that isn’t even mentioned in the bill, the government is intending to turn over law that has stood for generations – they are doing away with a principle that the person who caused the injury should pick up the bill for the injured to get independent legal help and proper compensation.

The bill, with lots of government talk about a ‘crisis’ with so-called ‘fraudulent’ claims and a ‘compensation culture’, is set against a backdrop of the government’s own statistics, which show a 7% fall in the number of personal injury claims in the first quarter of 2018. Data from the Association of British Insurers also shows that the net cost of insurance claims has fallen by 42% since 2010.
The truth is that whiplash, “compensation culture” and “fraud” are a fig leaf to distract people from the government’s true intentions: to reduce access working people have to justice and to pass £billions to the fat cats in the insurance industry.
With your help, we can undermine this insurer-backed bill. Help us, help yourself and friends who might get injured in the future and put pressure on the government to think again by writing to your MP - there is a pre drafted letter at
2. Stood Off Arrangements (UKEAT/0227/17/DM Mr B McElvogue v Network Rail Infrastructure Limited - EAT Judgment)
This was a union backed case we supported through to the Employment Appeal Tribunal and lost. This case has raised important issues to be aware of in situations where a member is deemed unfit for their substantive post and stood off arrangements.
Our member (M) suffered a head injury which led to periods of sickness absence. He was unable to return to his substantive role from December 2014. His doctor advised the employer that M may be fit for restricted duties i.e. small consistent tasks working three hours a day. Occupational Health (“OH”) considered three potentially suitable roles and commented that none were suitable unless adjusted such that they would fit M’s restrictions. The employer took the view that none of the roles could be adjusted sufficiently to meet his needs and the decision was taken to terminate his contract of employment on the grounds of ill health. M appealed this decision and his union representative pressed for a trial period in a vacant role, the employer considered this to be too risky and contrary to their duty of care.
The parties agreed that national agreed terms and conditions contained in the Red Book were incorporated into M’s contract of employment. M argued that he was entitled under the stood off arrangements to remain in employment for two years, in receipt of basic pay. He did so on the basis that he was declared fit for restricted duties by his own doctor.
The union’s legal team brought claims for the unlawful deduction from wages, unfair dismissal and disability discrimination.
Unfortunately, the Employment Tribunal dismissed these claims finding that the stood off provisions did not apply because there was no certificate of fitness for restricted duties and because the employer did not have a role that, even with adjustments, M could do. In other words, it agreed with the employer that stood off only applies if there is a role available that the employee could potentially carry out either with or without adjustments, but that role was not available at the time that the employee was certified fit for restricted duties. It found that the employer considered redeployment and found it was not an option.
The union supported an appeal to the Employment Appeal Tribunal, arguing that stood off applies whether or not there is a role available at the point the employee is deemed fit for restricted duties, provided the employee is fit for work on a restricted basis.
The appeal was heard by Her Honour Judge Eady QC. She praised our submissions. However, she looked at the context of the words as a whole. She was of the view that suitable ‘work’ meant ‘railway work’. The judge was of the view that ‘work’ only applied to templated roles. The judge looked in detail at the OH report and whether there had been any changes in the Claimant’s medical condition. She also considered whether the report made it clear that there was a role that could be modified. The appeal unfortunately failed.
Members who find themselves in this situation should be careful what they say when they visit OH or their GP they should always remember to emphasis what other roles they could carry out or what other roles they could carry out with adjustments. This would help strengthen their position if they are later dismissed for ill health incapability.
3. Criminal Helpline Numbers.
Please remember to have these numbers available should members need it For England and Wales 0207 624 8888.
Scotland 07718 416084
Could you please draw this to the attention of our activists and members.

Yours sincerely

Mick Cash
General Secretary