Claiming against employer v. colleague

It’s a common known fact that accidents can occur at any time and virtually anywhere. Unfortunately, they also happen when we might least expect it – for example, whilst going about our day-to-day duties at work.


According to figures recently issued by the Government, there were 70,116 non-fatal injuries reported during 2016, of which the vast majority were suffered by males and 7% of which related to an act of violence in the workplace.


So, if you find yourself in the unfortunate position of having to make a claim, who do you pursue a claim against? Your employer or the colleague you feel is liable for the incident?


In this blog we look at making claims – employer v. colleague.


What types of incident might give rise to a claim?


Firstly, we need to consider what types of issues might give rise to a potential claim.


There are, of course, many types of scenario which might result in some sort of damage being sustained – whether that’s to a personal belonging or item (for example, a vehicle) or directly as against the person. The latter is more commonly referred to as personal injury.


Different types of personal injury


There are two main categories of personal injury namely:


  1. A physical injury, disease or illness, and
  2. A psychological injury or illness.


Whilst a “physical injury” might be fairly obvious in terms of its description, “psychological” injury is capable of being much more complex since it can expand its scope to include bullying, harassment or stress.  So a claim could potentially be made, then, against a line manager who a particular employee might feel is being unfair, perhaps through an unfair distribution of workload compared to others, through verbal abuse, discrimination and so on.


How to make a claim


If you feel you need to make a claim, for whatever reason that might be, then you need to notify your employer of this as soon as possible. This requirement should never be underestimated since certain time limits apply for making any type of personal injury claim – usually three years from the date of the incident. Consequently, whilst (in some cases) it might simply be tempting to “wait and see” what happens, this certainly isn’t an advisable course of action and naturally, any evidence or events will be a lot less fresh in the mind in terms of providing accurate evidence.


If your claim relates to any form of personal injury then medical evidence is also advisable so be sure to obtain this from either your local GP or other health care professional. If your personal injury is visible (for example, a black eye, cut or bruise) then obtain clear photographic evidence and some means of measuring the size of it (for example, by putting a ruler next to the injury). Whilst this might seem over zealous it’s certainly useful information if the claim becomes disputed and/or proceeds to a Court hearing when you’ll certainly need to be much more specific about what you’re intending to claim and possibly even be subjected to cross-examination.


Who to claim against?  Employer or colleague?


More often than not, claims should be directed at the employer as opposed to the colleague – and there are various reasons for this.


Under the Health and Safety at Work Act 1974, all employers are legally responsible for the welfare and safety of their staff at all times. This means that they must also carry adequate insurance in case any claims (of whatever nature) are brought against them.


Unfortunately, it’s a common established fact that many employers aren’t aware that they can also be liable for a range of actions committed by their employees during the course of their employment. Such actions can typically include incidents such as bullying and harassment, violence and various forms of discrimination. Consequently, an employee can take action against their employer for the behaviour of any third party (even its clients and customers), provided that they’re deemed to be under the control of the employer at the actual time in question. This is otherwise known as “vicarious liability.”


The key question when it comes to establishing vicarious liability is whether or not the person involved was acting in a personal capacity or during the course of their employment. As you might expect, this can often be extremely difficult to determine. For example, what would be the case if Mr X (and employee of Joe Bloggs) sexually assaulted Miss Y (also an employee) at a corporate social event? Would Mr X be acting in a private capacity, or would this be classed as being during their term of employment? It certainly remains a hotly debated topic in terms of liability.


In the vast majority of cases, claims are brought in the first instance against the employer since they should be adequately covered by their insurance (whereas an individual will not) and, as we’ve already seen, they remain responsible for the actions of their employees. In certain circumstances, this can even include incidents which occur where the employee in question has since left the company.


What type of claim can be made?


If you’ve sustained any form of personal injury then there are two types of compensation you might be able to claim namely:


  1. General damages, and
  2. Special damages



Let’s take a look at these two types of damages.


  1. General damages are paid by way of compensation for any injuries sustained to the person – for example, a payment for any pain or suffering caused, or any potential loss of future earnings. The Court will usually decide on the amount to be paid unless the case is settled pre-hearing by separate negotiation.


  1. Special damages, on the other hand, relate to actual financial loss caused as a result of the incident. Losses could include damage to clothing, travel expenses to and from medical appointments, medical expenses (including the cost of private treatment) and any specific care costs etc. These are obviously much easier to quantify than general damages since the claimant will usually be able to provide receipts and show ‘actual’ loss as opposed to ‘perceived’ or ‘potential’ loss.




Unfortunately, accidents can – and do – happen at work so if you find yourself in the unfortunate position of having to make a claim it’s advisable to get proper advice, and at the soonest opportunity.


In terms of who to claim against, we’ve already seen that the vast majority of claims are made against the employer, although there are certain exceptions to this rule – more specifically if it can be established that the colleague was acting in a private capacity and not during the course of employment.


However – as with any type of accident – it’s advisable to make your claim known to all parties concerned and to obtain as much information as and when it occurs.


Put simply, you can never be too prepared when it comes to making a claim so be sure to form a comprehensive case and have enough solid evidence to successfully claim what’s rightfully yours.