Advice on employers’ liability, injury at work and health and safety

Employers’ liability insurance is a legal requirement for any business using labour.

It provides cover for legal liability for injury or illness caused to anyone working on the farm.

Businesses must maintain employers’ liability cover regardless of whether labour is employed on a permanent, self-employed or informal basis, including family members.

See also: Farm recruitment challenge: how structure and clarity can help

If self-employed people use the farm’s premises, tools or machinery and are under the direction of the manager of the business or its other staff, they are likely to be seen in the eyes of the law as an employee, regardless of their tax status.

Family members, friends or neighbours helping out (paid or unpaid) also need to be covered by employers’ liability insurance.

The legal minimum cover level is £5m but £10m is recommended for most farming businesses, says Michael Seals-Law, claims executive with insurance broker McClarrons.

Those with a large number of employees may need more cover.

Good health and safety management should be reflected in fewer accidents, keeping premiums down.

“Claims are low frequency in farming but can be high severity,” says Michael

He added that many involve livestock – cattle, pigs and horses – and forklift-related accidents and injuries as a result of trying to lift equipment. 

His colleague, Alastair Morley, is head of claims and stresses the importance of being able to demonstrate that health and safety law has been complied with.

“If the business doesn’t have the correct paperwork or records, including risk assessments, and forms are not completed, then it is less likely that we can defend a claim that we may otherwise have been able to defend.”

In general, in serious injury cases, the younger the injured party, the higher the potential claim, says Alastair.

This is because of loss of amenity aspect, care costs and loss of potential earnings.

Farming’s poor record

Farming’s poor safety record is well-known. In just eight months since 1 April this year, 22 people have died in farming workplace accidents, close to the total for some years.

Surveys suggest that only 16% of the most serious injuries to farmworkers (those which should be reported by law) are actually reported, says the Health and Safety Executive.

It estimates there could be 10,000 unreported injuries in the sector each year.  

“This is extremely concerning given that, in some of these cases, farmworkers may be unable to work following their injury,” says Charlotte Dowson, an associate in the complex injury team at law firm Bolt Burdon Kemp.

“This could be short-term, but for others they may never be able to work again in the sector.

“And the figures show they are likely to be going uncompensated for sometimes life-changing injuries.”

Charlotte acts only for employees and advises on farming accident claims for more than £100,000, where workers have sustained serious injuries such as traumatic and elective amputations, crush injuries, complex orthopaedic injuries and where they have developed psychological conditions. 

She also helps the families of workers who have suffered fatal accidents.  

Reluctance to claim

In some cases there may be a reluctance to report or make a claim, says Charlotte.

“Making a claim can be seen as betrayal or unnecessary hassle, especially in small, tight-knit farming communities.

“Some fear reprisals, lower pay or decreased support from employers should they seek to claim.

“Others will say: ‘Oh but my employer has been so good to me, they have kept my job open,’ and so on… and they don’t want to rock the boat.”

People injured are often working for their family, which can also lead to a reluctance to claim.

“Contractors, self-employed, and migrant workers often do not realise they have access to legal redress for work-related injuries, even though they may be entitled as a matter of law.”

Charlotte points out the legal requirement for employers’ liability insurance and that it is there to compensate for work-related injury or illness.

“People don’t always realise what a serious injury claim is looking to do – the whole point is to put someone back in the position they would have been in had the injury or illness not occurred.

“And it’s not just about the compensation sum. It can cover rehabilitation and interim payments – it can do a lot that the employer can’t.

“It needs to consider what life really looks like living with the immediate and long-term consequences of the injury or illness.”

Regarding reluctance to claim, she gives the example of a close relative of a farmer who was helping the farmer to move cattle.

The close relative was crushed and very badly injured.

“Despite this, they were reluctant to claim and it took the farmer and the insurer years to persuade them to do so.”

The size of a claim or award can be affected by the action or inaction of the worker.

For example, if they have contributed to the likelihood or severity of any injury, say, by not properly following the health and safety policy of the business.

It is also important for the employer to have clearly enforced their health and safety policy and that they have a record of doing so, says Charlotte.

Time limits

Claims must be issued at court within three years of the date of the accident/injury occurring, otherwise they will be time barred.

This is the relevant limitation period for personal injury claims specifically.

In the case of chronic or progressive illnesses or effects such as a back problem, farmer’s lung or other respiratory diseases, the time limit runs from the date of knowledge of the issue.

“This would be when the claimant first had knowledge of certain key facts: that the injury was significant, that it was attributable in whole or in part to the alleged act or omission, and the identity of the defendant,” says Charlotte.

“This includes what the person actually knew and what they could reasonably have been expected to know, including from observable facts or expert advice they ought reasonably to have sought.”

The vast majority of serious injury claims are settled out of court, says Charlotte, but typically take two to three years to conclude.

“This is because arriving at a settled prognosis can take a lot of time, especially if multiple surgeries or treatments are needed.”

Philip Liptrot, head of personal injury at law firm Thompsons, which acts only for injured people, says that successful cases rely on proving the employer was negligent and that such negligence caused the injury.

“You effectively have to show that the claimant was exposed to a foreseeable risk of injury and one that could and should have been avoided,” he says.

“For example, failure to risk assess or failure to take action once a risk assessment has been carried out.”