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Recent Changes in Discount Rate in Personal Injury Claims

August 7, 2017 at 9:00 AM

On the 20th of March 2017, the Lord Chancellor reduced the ‘Discount Rate’ in Personal Injury claims from 2.5% to -0.75%. This may have been something you heard about and perhaps wondered about its significance. Well, for a severely injured person and their families, this change is immensely significant.

Get ready for the apprenticeship levy

If you are claiming compensation for a personal injury, the focal objective is to put you in the financial position you would have been in, had there not been an accident. In many cases, a Claimant will receive a lump sum compensation which covers their future financial losses. For example- lost earnings, future care needs and additional treatment. The Claimant is then expected to invest this money to receive a return where it can be used for their future needs.

So where does the Discount Rate come in?

A personal injury Discount Rate is a rate where by any compensation received in relation to future losses is reduced to reflect the interest they will receive for investing the lump sum. If the discount rate is too high, this results in the Claimant being under compensated due to inflation and if the discount rate is too low, the Claimant could be overcompensated by way of interest on the investment.

Previously, the Discount Rate was 2.5% and this had not been changed since 2001. The percentage, at the time, was intended to reflect the average redemption yields on Index-Linked Government Stocks (ILGS). The ILGS yields have decreased significantly below 2.5% for several years thus the Association of Personal Injury Lawyers (APIL) took the step of commencing legal action to represent claimants adversely affected by this rate.

Neil Sugarman, Fellow and Executive Committee member and past president of APIL, stated that ‘People with lifelong injuries are continuing to be overcompensated, in some cases, by hundreds of thousands of pounds, because successive governments have dragged their heels and failed to review the discount rate to reflect changes in the economy’.

What is the current position?

Earlier this year, and in response to criticisms around the lack of change, the Lord Chancellor reduced the Discount Rate to -0.75% and whilst insurance companies may disapprove of this alteration, the prodigious fall of 3.25% clearly acknowledges how outdated the previous rate was and begs the question - how many severely injured people have been undercompensated as a result from this?

The Law Society of England and Wales president Robert Bourns has welcomed the change and has commented on how this will make a difference including in cases involving: brain damage at birth and in circumstances involving essential compensation to cover support and adaptations needed to help individuals live as normal a life as possible.

Essentially, the change means that severely injured victims will no longer be lost in an outdated system, but will have a fair and correctly calculated opportunity of receiving accurate compensation.

In a nutshell, the discount rate will help to ensure that Claimants are compensated in such a way that will leave them in a more realistic financial position.

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Headway UK – Brain Injury Identity Card

August 4, 2017 at 9:00 AM

Headway UK (The Brain Injury Association) has recently launched its new ‘Brain Injury Identity Card’ to help ensure that brain injury survivors receive fair treatment and support in the community. The main aim is to enable card holders to easily make members of the public aware of their brain injury and the difficulties they might have as a result. This has proven really helpful to card holders in everyday situations. It is also helpful to the police so they can treat brain injured people appropriately if they are involved in the criminal justice system.

Headway Brain Injury Identity Card

The new initiative contains a photo of the card holder, their name and a list of some of the symptoms of their brain injury, such as difficulties with speech and language, processing information or balance and mobility.

Anyone over the age of 18 can apply for themselves or can apply for someone else who has a verifiable brain injury. The application is free of charge and is straightforward.

Committee members of Headway North Derbyshire and brain injury survivors, Les Richardson and Jez Gibson, have already experienced many positive changes to their day to day lives from using their identity cards. Les has found members of the public speak more slowly and are more patient with him, once they have seen his ID card. Jez has found bus drivers wait until he is safely sat down before driving off. The ID card has resulted in survivors going about their everyday life with increased confidence and independence.

Below is a YouTube clip from Headway UK website showing a survivor being refused access to a taxi on the assumption that he was drunk but the reality was this persons slurred speech and inability to walk with full control was the result of a brain injury. Once the taxi driver saw the ID card he understood and treated the brain injured person with empathy and understanding.

Employment Tribunal Fees ruled to be unlawful

July 28, 2017 at 9:00 AM

The Supreme Court has this week changed the landscape of employment law following their decision that making claimants pay fees to pursue employment law claims was unlawful.

In 2013, the then Government introduced the payment of fees for those making claims to the Employment Tribunal. These fees were intended to discourage people making weak nuisance claims against their (former) employer and to pass some of the financial burden of the Employment Tribunal system from the taxpayer to those making claims. The fees ranged, depending on the type of claim, from £390 for a claim for unpaid wages up to £1,200 for unfair dismissal or discrimination claims. The result of bringing in these fees was a 79% reduction in the number of claims made to the Employment Tribunal.

Employment Tribunal Fees ruled to be unlawful

After a number of legal challenges against the fees, all of which had previously been rejected, the Supreme Court found that the fees prevented access to justice and were discriminatory.

What impact will this have?

The immediate impact on individuals looking to pursue a claim is that fees are now not payable. Those individuals who have paid fees previously to bring claims, will be refunded. It is estimated that the total amount to be refunded will be in excess of £30 million. For those employers who had successful claims made against them and had to pay Tribunal fees as part of the compensation awarded, they too should be entitled to a refund of that element of the compensation award.

More complicated is the position of individuals who decided not to make a claim having been put off by having to pay fees. They will now be out of time to pursue their claim and it remains to be seen whether if they were to make a claim now, despite being out of time, and argue that the time limit for making a claim should be extended as they were prevented from pursuing a claim at the time due to the unlawful fees, they would be allowed to pursue their claim.

In the longer term, the Government are likely to seek to introduce a new fee regime although this will require consultation and so is unlikely to be in place for some considerable time, if it even receives approval from parliament.

So what should I do?

If you are an individual looking to make a claim, then even without the fees being payable to the Employment Tribunal, you should still ensure that you are not pursuing a weak claim as, although only payable in limited circumstances, the Tribunal can order a party to pay the other sides costs. Employers and their representatives are more likely to be making requests for costs in such cases to deter individuals making weak claims. It is important therefore to take advice on the merits of your claim and seek representation to ensure you are not pursuing a claim that has no prospects of succeeding, and that you are not pursuing a claim in a way that causes increased cost to your (former) employer.

If you are a manager or business owner, it is now more important than ever to ensure that your employment related documents are up to date, that those responsible for handling disciplinary and grievance hearings are correctly trained, and that any employment issues are dealt with promptly. With no fees payable, there is likely to be a significant increase in the number of claims being made in the future.

If you have any employment law issues please call the employment team at Spencers on 01246 266680 to discuss how we can assist.


About the Author

Liam Kenealy is an experienced Employment Lawyer who has been advising both individuals and businesses on a wide range of employment and HR issues including unfair dismissal, discrimination and breach of contract cases since 2007. He is known for his ability to deliver practical down-to-earth commercial and cost effective advice.

Liam is a skilled negotiator and advocate of best practice in all areas of employment. Liam is proficient in preparing employment cases and representing his clients at Tribunal. His approach is very much client focused, pro-active and tailored to individual client needs.

Don’t be blind to Invisible Disabilities...

July 11, 2017 at 9:00 AM

Under the Equality Act 2010, a disability is defined as a physical or mental impairment which “has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

Asda - Accessible Toilets

Increasingly, disabilities which fall within this fundamental definition are invisible and/or hidden to others whilst being completely debilitating to those affected.

Often defined as “disabilities that are not immediately apparent”, invisible disabilities include chronic pain disorders, chronic fatigue conditions and mental illnesses. By their nature, these conditions can be difficult for others to recognise, acknowledge and/or understand simply because the symptoms aren’t always immediately apparent.

So what can employers do to support employees with invisible disabilities?

Raise Awareness & take a leaf out of Asda’s book...

Encouraging awareness and making small changes can have a significant impact.

Asda recently put up signs in over 400 stores to encourage customers to recognise that not all disabilities are visible and to support customers suffering with conditions such as Crohn's disease, autism, anxiety, and inflammatory bowel disease to essentially support them to use disabled facilities without facing criticism from other customers.

The measure was inspired by the experience of a customer who legitimately used the disabled facilities due to suffering with a chronic condition affecting her balance and necessitating the use of hand rails.

The customer had been met with hostility and had been challenged on her use of the toilet by another customer – for exactly this reason – that the disability wasn’t immediately apparent. This led to the display of the signs. Similar measures can easily be adopted by any employer looking to raise awareness of this very issue.

Speak to employees

Even in the most open and supportive working environments, employees may be reluctant to openly discuss their health or personal matters. However, regular interaction with staff can help. In particular - meeting regularly with staff on a one to one basis may provide the opportunity they need to disclose information relating to an invisible disability. Equally, regular meetings can be a useful way to identify and agree any arrangements, changes or adjustments that will work for the business and the individual involved.

Provide flexibility

Flexible working practices such as accommodating a variation of working hours, part-time working or home working on a regular or occasional basis (wherever possible) could make a significant difference to some employees. Equally, providing flexibility can often prove mutually beneficial in the sense that a flexible employer will often benefit from reciprocal flexibility and an increased level of commitment from employees, particularly as employees are often appreciative of any flexibility afforded to them by their employer.

Equally, allowing as much flexibility as possible, whilst of course balancing what is reasonable and permissible operationally, may help retain an employee who might otherwise resign or whose performance may otherwise suffer.

Make reasonable adjustments

Most employers are aware of the duty to make adjustments to accommodate the needs of those with a disability. However, what does this mean in practical terms?

In a nutshell, employers are required to understand the barriers an employee is experiencing and put adjustments in place to resolve them as far as practicable. Naturally, employers need to involve the employee in any discussions around potential adjustments as ultimately – they are the experts on their condition.

What is reasonable will depend on the specific circumstances. However, in general terms adjustments could include changes to the working environment, working pattern and/or the provision of specialist equipment.

Adjustments needn’t be costly and small changes could make a significant difference and ultimately be sufficient to support and retain a valued employee.


About the Author

Kelly Pashley-Handford Photo

Kelly Pashley-Handford is an experienced and CIPD qualified Human Resources (HR) Manager with extensive generalist and operational HR expertise, which is further supplemented by over 20 years with the business.

Kelly finds her role incredibly rewarding and is passionate about delivering a diverse range of HR solutions both internally and to external business clients.

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Flip out for National Flip Flop Day on 16th June!

June 12, 2017 at 9:00 AM

Did you know that Flip Flops actually got their name from the sound they make against the ground when you walk?

Flip Flop and Summer Accessories

You may also be surprised to hear that Flip Flops have been around for thousands of years stepping back in time to the Ancient Egyptians.

Flip Flops are worn around the world and have become the favoured choice of footwear for a visit to the beach or just a stroll around in the sunshine. There is even a day dedicated to the celebration of flip flops and this is the 16th June.

However, whilst they can be great to wear on a fun summer’s day out with your friends and family, the lack of support and thin soles can lead to sore or injured feet and can even cause accidents!

A recent study showed that Flip Flops appeared to cause 1.4 million road traffic accidents or near misses every year. In a poll taken, 27% of drivers admitted driving in flip flops had caused a mishap, and 11% said the shoe had got stuck under the pedals. Flip flops can even can slow a driver’s BRAKE time by up to 13 seconds.

Wearing Flip Flops can also cause slip and trip accidents. The most common injuries caused include ankle sprains and broken wrists from falls. Flip Flops are loose fitting, open and generally quite slippery causing them to get caught on steps, loose flooring or pedals and even causing them to slip off your feet at the wrong time. Many ankle sprains and breaks are caused by feet slipping sideways in Flip Flops causing ankles to go over.

I experienced my own Flip Flop injury whilst visiting a popular theme park in France with my husband and son. I was walking around the park in the hot sunshine making our way to the next ride when my flip flop caught in a tram line. This caused me to trip and fall and bang my toe on a concrete curb stone as a result . Whilst the fall itself was rather embarrassing the impact of my foot hitting the concrete actually caused the nail on my big toe to be ripped from the nail bed and yes it was VERY painful!! Over the weeks I did lose my nail with a new one luckily growing underneath and more to the point I had no broken bones! Needless to say, during this year’s visit to theme parks during my summer holiday it will be trainers all the way!

Over wearing flip flops can even cause plantar fasciitis which is an inflammation of the ligament connecting the heel bone to the toes and this can be rather painful to anyone unlucky enough to develop the condition.

Here are some treatments that can assist to speed up your recovery if you are suffering from plantar fasciitis:

  1. Resting your heel – avoid walking long distances and standing for long periods

  2. Regular stretching

  3. Pain relief – using ice packs and pain killers

  4. Wearing well fitted shoes that support and cushion your feet (not flip flops!)

So whilst most of us would agree that Flips Flops can make a lovely fashion accessory in the summer and are great for relaxing on the beach, we should bear in mind the length of time we will be wearing them and shouldn’t wear them for prolonged periods of time. Giving careful thought to the activities we will be taking part in when wearing Flip Flops is also advisable to avoid mishaps like mine!

I would also warn against driving whilst wearing Flips Flops to avoid becoming another flip flop wearing statistic and potential accidents.

Enjoy this timeless foot wear but keep the Flip Flops for the beach and stay safe and injury free this summer....

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