• Robert Spicer

Two bites of the cherry? Tribunal and court claims for workplace injury and diseases

Most civil claims for compensation for personal injury, and many employment tribunal claims, are settled by compromise agreements before they come to court. These agreements are strictly controlled by binding legal rules, including the requirement that employees must receive independent advice from a qualified lawyer. Settlement agreements effectively involve a claimant signing away their legal rights in return for a sum of money. In the context of health and safety at work, where a worker has suffered workplace injury or disease, the question may arise as to the worker’s right to bring later proceedings related to that injury of disease. This issue was recently addressed in the Scottish case of Troup v West Lothian Council (2020). The facts, in summary, were that Ms T was employed by WLC as a primary school teacher from 2004 until 2017. She suffered a major depressive disorder with anxiety, which she alleged had been caused by WLC’s breach of its duty of care. She brought a claim for compensation for personal injury. The basis for this was that WLC knew or ought to have known that she was at risk of psychiatric injury because of work-related stress and WLC had failed to take reasonable care for her mental health. Before bringing the personal injury claim, Ms T had lodged an employment tribunal claim against WLC for discrimination. She sought compensation for loss, injury and damage in respect of her psychiatric injury. She alleged disability discrimination, that WLC had failed to make reasonable adjustments and that she had suffered harassment. The claim was settled and Ms T signed a compromise agreement. The compromise agreement stated, in summary, that a sum of money was paid to Ms T in full and final settlement of all claims against WLC arising from her employment including, but not limited to, claims under contract law, a number of statutes and other work-related regulations. It also contained an exclusion clause which excluded any claim for damages for personal injury which might be brought before the ordinary civil courts of Scotland arising from circumstances occurring before May 2017. WLC applied for dismissal of the later claim for personal injury on the basis that Ms T was personally barred from bringing the claim. It made the following points: · Ms T had settled her claim for compensation for psychiatric injury and she was barred from suing WLC in respect of the same injury arising from the same circumstances. · The exclusion clause was ambiguous and should be narrowly construed to apply to claims not settled by the compromise agreement, for example a fall from height, assault by a co-worker and slips and trips. On behalf of Ms T, it was submitted that the compromise agreement had value to both parties to it. The payment of compensation in settlement of the employment tribunal claim ended the disability discrimination claim. This ended the risk of reputational damage. However, it was not intended to settle each and every aspect of Ms T’s claim. The Scottish court decided the following: · The claim could proceed. · Both parties accepted that the compromise agreement was a binding contract and if the exclusion clause did not exist, the agreement would clearly cover the personal injury action. · There was no ambiguity in the exclusion clause. The wording of the clause was of paramount importance and applying its ordinary and natural meaning, it was clear that it excluded the personal injury claim. · If the exclusion clause would apply only to falls from height, slips and trips, it would have been drafted accordingly. · The employment tribunal claim and the personal injury claim were not based on the same set of circumstances. The employment tribunal claim was based on a statutory claim for disability discrimination, whereas the personal injury claim was base on common law negligence and breach of contract. An earlier case which deal with similar issues is Sheriff v Klyne Tugs (Lowestoft) Ltd (1999). S, a Muslim of Somali origin, was employed by K on one of its ships. He complained to an employment tribunal of racial harassment, abuse and bullying. He was made to work longer hours than his white workmates, had to eat food prohibited by his religion and was refused permission to go ashore for medical treatment. In 1995 he suffered a nervous breakdown and was certified as being unfit for work because of anxiety and stress. He was dismissed. His employment tribunal claim was settled. The settlement agreement stated that it covered all claims arising from his employment over which the employment tribunal had jurisdiction. S then brought a claim in the county court for compensation for post-traumatic stress disorder resulting from the racial harassment. The county court struck out the claim on the basis that it was an abuse of process. The personal injury claim was one over which the employment tribunal had jurisdiction and had already been settled. S appealed to the Court of Appeal. That Court dismissed the appeal and made the following points: · Employment tribunals have jurisdiction to award compensation for psychiatric injuries. · Employment tribunals cannot hear claims based on negligence, but they can award damages for personal injury caused by discrimination. · The county court has jurisdiction to award damages for personal injury caused by discrimination in fields other than employment.


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