The Telegraph newspaper reported in January 2014 about a doctor at Barts Hospital in London who had erroneously received a “banding supplement” of £4,000 per month for on-call duties.
This went on for more than two-and-a-half years, with the incorrect payments totalling £126,000.
Overpayments of wages can occur in a variety of ways, including genuine payroll errors and miscalculation of commission/bonus schemes. According to the report, the £126,000 mistake (which was the most expensive of many) was to be resolved by the doctor paying it back at £500 per month. That would take over 21 years.
While overpayments of wages can and do occur (as seen above), where you’ve been injured and are off your work as a result, you’re much more likely to be experiencing an underpayment of wages. The negative financial consequences of being injured in an accident can be significant.
What steps can you take to make sure you maximise your income in the aftermath of an accident which leaves you nursing injuries at home?
In this article, we will consider the basic rights you have to receive sick pay from your employer. We’ll then go on to look at other possible sources of income that might be available to you. Thirdly and finally, we’ll highlight a specific problem which can arise in relation to payment (or, more exactly, reimbursement) of wages in some cases – and what you can do to protect yourself (and your employer).
1. Is there a right to receive full pay when you are off work after an accident?
In talking about “incapacity for work” what we mean is that a person is not fit, through illness or injury, to perform their duties.
There is no statutory right to receive full pay for time spent away from work due to sickness.
In some cases, you may be entitled to receive full (or reduced) pay, either because your contract of employment or your employer’s sickness policy entitles you to such payment. Accordingly, if you are unfit to work as a consequence of an accident, it’s a good idea to check these documents first of all.
If you are self-employed, unfortunately, the possible benefits from a contract of employment cannot apply to you.
You may have a right to receive state benefits (for which, see further below).
A wide variety of contractual rights to sick pay exists.
There is a general difference between the public (better rights, on average) and private (fewer rights) sectors. Payment is usually conditional on certain conditions being met.
Your employer has a statutory duty to provide you with particulars of the terms and conditions which apply to you, relating to incapacity for work due to sickness or injury, including any provision for sick pay.
If you have been injured at work and are off as a result, in some situations your employer will pay full or partial wages to you, even in the absence of a contractual right. This could simply be because they are a caring employer; it could also be an indication of regret or a feeling of moral responsibility on their part where you have been injured in the course of your employment with them. Of itself, continued ex gratia payment of salary is not, for example, an “admission of liability” by your employer that you would have a right to claim compensation for all your other losses (e.g. the pain and suffering of your injuries) from them or their insurers.
2. What about other possible sources of income?
The government Statutory Sick Pay (SSP) scheme entitles qualifying employees who are absent from work due to incapacity to receive a minimum weekly amount of money.
SSP is taxable and also subject to national insurance contributions (NICs).
The legislation surrounding SSP is complicated. HMRC guidance on the way SSP works is available on the GOV.UK website. It includes an SSP Calculator to help employers work out an employee’s SSP entitlement.
Another possible source of income is Industrial Injuries Disablement Benefit (IIDB). You may be eligible for this if are ill or have been disabled as the result of an accident at work.
The amount you will receive depends on your individual circumstances. Generally, you need to be assessed as at least 14% disabled by a ‘medical advisor’ in order to qualify.
You can’t claim IIDB if you were self-employed at the time of your injury.
Again, the GOV.UK website contains details about IIDB – and how you can go about claiming.
3. Something to watch out for: rights your employer may have if you are off after an accident.
This applies where your injury is not one where your personal injury claim lies against your employer. It could be that you were injured due to a road traffic, while on holiday, or that you slipped in a supermarket, while shopping.
In those situations, you are not going to be off work due to anything your employer did or did not do.
You may be losing wages through no fault of your own but, from another angle, your employer may be losing money too. If they’re paying you partial or full wages while you are off, that’s money down the drain for them. They’re paying you for work which you are not able to carry out.
In our experience, many – but not all – employment contracts contain a clause which says that if you (the employee) are off work due to an injury which is caused by the negligence or breach of duty of the third party (i.e. not your employer), your employer will have the right to include (as part of your claim against that third party) any wages they paid to you while you were off.
It is legitimate for such a claim to be included in your claim against the third party, provided there is a clear term in your contract to that effect. But, if there is no such term, the right does not arise.
So, you need to be careful, as regards wage loss.
Where your accident falls into this category, you need to check with your employer whether they have the right to claim back money for a loss of this nature.
If they do, you need to get vouching of the terms of relevant clause from your contract, as well as their calculation (with vouching) of the sum of money involved. On the other hand, if they have not made express provision for this, they are stuck with paying you and not being able to claim it back. They might be quite irritated by that.
The risk, if this gets overlooked, is that you will receive final compensation for your personal injury claim only to find out sometime later that your employer asks: “What about our money?”. That’s really not a good situation to find yourself in – not only injured in an accident but also ending up falling out with your employers over pay you have received while off sick.
Let’s summarise what we have discussed in this article.
If you are off work after an accident what rights do you have to receive pay?
- Whether you are going to receive any pay while you are unfit to work will depend on the terms of your employment contract – and that’s what you should check first.
- Though it’s unlikely that your employer will inadvertently overpay you during any absence, ‘kind’ employers may continue to pay you full wages or at least something, depending on the circumstances.
- Beyond that, your eligibility to receive money will depend on things like statutory sick pay and industrial injuries disablement benefit.
- There’s a possible trap for the unwary where an employer continues to pay wages to an employee who is off but who was not injured due to the fault of the employer. The employer may have a contractual right to claim back wages paid during absence from the third party against whom the employee’s personal injury claim lies.
- The right only exists if it’s in the contractual terms. Accordingly, it’s maybe even worth being proactive with your employer about this and checking the position before either you or any of your fellow employees have an accident. There’s no disadvantage to you in having such a clause in your contract. If necessary, an agreed (in writing) variation of the terms of your contract would beef up the financial protection for your employer – raising your approval rating with your employer in the process.
How we can help
If you have any questions as a result of this article – or regarding any aspect of our personal injury claims services – please get in touch with us. All initial enquiries are at no charge and without obligation.