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Published On: August 30, 2016 | Blog | 0 comments

Compromise agreements and injury claims

A lot of employment disputes are resolved by agreement between the employer and employee, with both parties signing a document known as a “compromise agreement.” It will contain the terms of the settlement, including often the right not to take any further legal action against the employer. If such agreements are not drafted properly, an employee may be prevented from making any further claim against their employer, even if they have a perfectly valid claim. Most of the time these agreements exclude the bringing of an injury claim. That is fine as long as an employee has not been injured or been exposed to a harmful substance that could lead to their developing an industrial disease many years down the line. Otherwise, it can go all go horribly wrong.

I recently settled a professional negligence claim for a client who had sustained a musculoskeletal injury during the course of her employment. She had worked as a room attendant at a hotel and undertook physically demanding tasks, including cleaning the hotel rooms, changing bed linen, turning mattresses, moving furniture to name, but a few. These were, of course, was part of the job.  However, my client was under extreme pressure to clean a number of rooms to a very high standard within a set number of hours without any assistance. As a consequence, she would work her shift with little or no break.

It wasn’t, therefore, surprising that before long my client developed pain and restricted movements in her upper and lower limbs. She sought medical treatment and was advised to avoid strenuous activities at work. Unfortunately, her employers were less than accommodating and my client’s condition deteriorated. She was signed off work before eventually being dismissed on medical grounds.

As part of a settlement of her employment claim, my client was required to sign a compromise agreement and she sought advice from an employment specialist on this. They advised her about the terms of the settlement and were aware she had a potential injury claim against her former employers, but due to an oversight, that agreement excluded her right to bring such a claim. My client who had limited grasp of English was being assisted by an advisor who spoke her language and relied on him to ensure the agreement protected her interests. This mistake only came to light after the parties had signed the agreement and my client effectively lost the right to bring an injury claim.

My client instructed me to pursue a professional negligence claim against her legal advisor, who had by that time admitted their mistake. The claim was for the loss of a chance to bring a successful injury claim. Notwithstanding her employment advisor’s mistake, in order succeed with this claim it was necessary for my client to prove that had she not lost that opportunity, she would have had a reasonable chance of succeeding in her injury claim. I had to assess in percentage terms what her chances of winning the injury claim would have been if it had been possible to make such a claim, as she could only recover compensation according to that percentage. This meant if she would have had a 60% chance of succeeding in an injury claim, she would recover 60% of the total value of such a claim.

It was, therefore, crucial to establish not only that my client’s employers had failed to provide her with a safe working environment, but also that her injury was caused by that failure. This wasn’t straightforward as my client had some pre-existing medical conditions. Fortunately, our medical expert in rheumatology confirmed that her condition was accelerated by the work she had undertaken whilst in employment and we were able to settle the claim for a reasonable sum.

Sadly, such oversight in compromise agreements is not uncommon, especially as people in difficult employment situations are often, understandably, keen to bring closure and move forward without paying too much attention to the terms. Unlike my client, many may not even be aware of a potential injury claim against their employers until later. Whatever the circumstances it is better for those who find themselves in this situation to be clear about the terms of any compromise agreement before these are signed. Compromising an employment claim need not lead to the exclusion of an injury claim.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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