No win, No fee There are many misconceptions with regard to self employed accident at work claims, and other types of non-traditional employment, and when you can and cannot claim. At first glance, it may look difficult to claim compensation; however, it will depend upon the circumstances of your employment.
Making a claim against yourself when self-employed
Before we look at various areas in which enhanced protections may allow self-employed people to claim compensation, let us look at making a claim “against you, the boss”. If you are injured as a consequence of your own negligence while self-employed, any compensation claim would in effect be against yourself. Therefore, in this particular scenario there is no case to answer. You were injured as a consequence of your own negligence, effectively as your own boss.
As a self-employed individual you are both the boss and employee. When it comes to personal injury claims, there is no differentiation between these two roles. Therefore, as negligence cannot be placed upon a third party, there is no route down which to claim compensation. The situation may be different with a company set-up, as they are seen as a separate legal entity in the eyes of the law. If you were given instructions from another individual connected with the company, there may be scope to pursue compensation in the event of injury.
Employers’ basic duty of care
It is common knowledge that an employer has a basic duty of care to their employees. However, did you know that an employer also has a basic duty of care to their customers and working third parties visiting their premises?
If somebody is on your premises (or even working for you off-site) you have an obligation to ensure their safe well-being. This includes issues such as:-
- Maintaining a safe, clean and tidy working environment
- The provision of protective equipment to support safety measures
- Training in the use of machinery and general health and safety
So, where do you stand as a self-employed individual contracted to work for a client?
The rights of employed and self-employed parties
Many people automatically assume that anyone who is self-employed has to “look after themselves”. Even when invited onto working premises there tends to be a general assumption they have no protections whatsoever. Well, you might be surprised to learn that those classed as employees and self-employed, working for the same employer, can have similar rights and protections.
The various protections, which can form the basis of a personal injury compensation claim, revolve around the working environment and the action of employees. At this juncture it is very important to separate employment rights and health and safety rights.
The majority of self-employed individuals will have significantly reduced employment rights when working for a third-party. The situation with health and safety and the self-employed is very different. These issues revolve around safety in the workplace and are identical for both employees and third parties invited onto working premises.
As a self-employed individual you may be eligible to claim compensation if:-
- The company failed to provide a safe working environment and you were injured as a consequence
- The actions of one of the company’s employees directly caused an accident and injuries
- The company failed to provide appropriate/safe equipment leading to an injury
- The majority of your time is spent with one customer, resulting in enhanced protection
- The company has direct control over your working practice/working environment, resulting in the same duty of care enjoyed by their employees
Historically, many companies used self-employed individuals in order to reduce their health and safety/employer obligations. In recent times the government has tightened regulations regarding projects for those who are self-employed. As a consequence, especially when it comes to health and safety, protection has been enhanced. Many self-employed workers will now be eligible to file a self-employed accident at work claim for compensation if injured as a consequence of negligence. Companies are now being held to account.
Agency workers, zero-hours contracts and homeworkers
While considering the protections available to the self-employed, it is worth looking at other roles which are seen as non-traditional employment positions. What health and safety protection is available for:-
- Agency workers
- Zero-hours contracts workers
- Homeworkers
In recent years we have seen a shift towards temporary/short-term employment and those looking to work from home. This is a trend which is likely to continue post the COVID pandemic, and therefore health and safety protection is a topical issue.
Agency workers
While there is no doubt agency workers have similar health and safety protection to full-time employers, who is responsible for providing this protection?
Interestingly, there are occasions where the agency may be liable in the event of injury caused by negligence or the company that employed you. This will come down to the terms of your contract with either the agency or the company you are working for:-
Agency liability
The degree of hands-on management will differ between employment agencies. If your agency is responsible for your day-to-day activities, providing training and equipment, they may be liable for injuries caused by negligence. The majority of agencies tend to hand over day-to-day management to the companies employing their agency workers. As a consequence, some elements of their traditional liability/obligations will also be transferred.
Company liability
Under normal circumstances, an injury in the workplace caused by negligence would place the company employing you in the firing line. As we touched on above, some agencies take more day-to-day control over their employees, while others simply transfer day-to-day management to their company clients. It is worth noting that no agency/company employment contract can reduce or eliminate your health and safety protection. Somebody is liable, and the devil will be in the detail!
Zero-hours contracts
Zero-hours contracts have long been a controversial type of employment, often leading to misunderstandings and confusion regarding rights and protections. In reality, these issues are straightforward and crystal clear. It is your employer who is liable in the event that you are injured in the workplace as a consequence of their negligence. When working for your employer they are responsible for your well-being and safety.
Homeworkers
The subject of homeworkers, and health and safety protection, has become something of a minefield. While the basic health and safety/well-being obligations towards employees still remain with your employer, this is only extended to circumstances within their control. Indeed, such is the confusion; your employer is actually obliged to carry out a safety assessment of your working area, wherever that may be.
Some of the common injuries to which your employer may be liable include:-
- Faulty equipment
- Lack of training
- Non-provision of safety equipment
- Failure to provide appropriate equipment
On the other hand, some injuries over which your employer has no control might include:-
- Trips, slips and falls
- Failure to follow company guidelines
- Inappropriate use of machinery
There is a simple acid test, was your accident a consequence of your negligence or negligence on behalf of your employer. The subject is complicated a little by the need to carry out regular risk assessments. Failure to do so could leave your employer wholly or partially liable to any injuries and potential compensation – no matter what the scenario.
Collecting evidence to pursue a self-employed accident at work claim
It is important that you collect as much evidence as possible if you’re injured in an accident at work, where you believe your employer may be liable. Some of the more common elements of evidence collated include:-
- Medical reports
- Photographs of injuries
- Photographs of surrounding area
- Witness statements
- Communications with employer/customer
- Details of previous complaints
- Copy of employment contract
- Timeline of events
There are basic health and safety protections available for all elements of the workforce. There may be differences in employment rights between employees, self-employed and agency workers, but there is no reduction in third-party health and safety obligations.
Approaching a personal injury claims solicitor
Once you have gathered as much information as possible, it is time to approach a personal injury claims solicitor for further guidance. The vast majority of solicitors would offer a no win, no fee agreement if they believed you had a good chance of success. This ensures that your financial risk is minimised and indicates that you have a relatively strong claim – at least in the eyes of the solicitor.
In exchange for offering a no win, no fee agreement, your solicitor would require a percentage fee of any compensation awarded. For many claimants no win, no fee offers good value because of their reduced financial risk. It is important to recognise that personal injury claims are time-barred and you must begin proceedings within three years of the accident, or injury diagnosis, so essentially as soon as possible.
Approaching the defendant
Once all of your evidence has been collated, reviewed and expanded where applicable, your solicitor will approach the defendant. The majority of self-employed accident at work claims will be settled out of court, during a “roundtable” discussion. This is the moment that your personal injury solicitor will come into their own, demonstrate their value for money and negotiate the best settlement.
The self-employed are protected
During this article we have focused on the health and safety protection afforded to the self-employed, while also looking at other types of non-traditional employment. It is important to recognise that when working for a third party, whether an employee or self-employed, your employment protections may vary but your health and safety protections do not. Whether on work premises or not, if you are carrying out work for a third party they have an obligation towards your health and safety and well-being.
The days when customers were able to circumnavigate legal health and safety obligations by using self-employed workers have long gone. Ensure that you are fully aware of your legal protection, your employer’s obligations and if you are injured as a consequence of negligence, you are well within your rights to pursue a self-employed accident at work claim for compensation.
