MCN Law December round-up | 'My employer wants me to repay 12 weeks’ sick pay'

Paid partnership with BikeLawyer

Each month, we take a look at the questions that were sent to the MCN Law column, which is written by Andrew Campbell from BikeLawyer.

In December, Andrew was asked about paying an employer back for sick pay, a rocketing premium after a no-fault accident and what it costs (if anything) to change solicitor mid-claim.

If you need representation or legal advice with a biking matter, visit www.bikelawyer.co.uk or email andrew@bikelawyer.co.uk or call 01446 794169.

They want my sick pay back

I was knocked off my bike on a mini-roundabout and off work for 12 weeks. I was examined by the other side’s medical expert and he says no more than four weeks off work was required, which I disagree with as I was simply physically unable to do my job! My employer wants me to repay 12 weeks’ sick pay for the time I had off that they paid me for but if I can only claim four weeks’ pay then I am going to be out of pocket. Can I resolve this?

Ben, email

It seems that your employment contract contains a subrogated claim clause. This allows your employer to recover sick pay paid to you from the compensation you receive from a third party. Your solicitor should send you to your own medical expert rather than relying only on the other side. The doctor you see should be specifically instructed to comment on the reasonableness of the time off.

If you explain the position to your employer, I often find that they will accept what you actually recover for loss of earnings rather than the full amount of sick pay paid. This frequently arises in cases where liability is split. An example is where there is 50/50 blame then employers will often accept 50% rather than the whole amount.

Why am I being penalised?

I have fully comprehensive motorcycle insurance. I was unfortunately involved in an accident earlier this year when a delivery van swerved into my lane. Although I was luckily not really hurt my bike and gear were damaged. The van driver admitted blame and his insurer repaired my bike and paid towards new leathers. At renewal last week I told my insurer about the incident and they have quoted a lot more for the premium than the previous year due to the accident even though it was not my fault. How can this be?

Andrew Jenkins, email

I am sorry to say that increased premiums are often quoted after a non-fault accident. This is because it is a statistical fact that someone who has had one accident is more likely to have a second one, even if they were not at fault in the first.  As such, because you were involved in the accident your insurer is statistically more likely to have to pay out on your policy in the future.

Insurers use different risk assessment models and as a point of policy some insurers will not penalise a non-fault accident victim. It is a good idea when looking around for bike insurance to compare quotes from as many insurers as you can to make sure that you are getting the best deal which should help you reduce the increase as a result of this accident.

Will changing cost me?

I am getting increasingly frustrated with my solicitors that my insurer instructed for me to use after my accident. I was in hospital with some nasty fractures when they were signed me up as a client and I didn’t really have time to do my own research on which solicitor firm to use. My telephone calls and e-mails go largely unanswered but when I do hear from them nothing seems to be happening. I have read that I can change solicitors if I want to but will I have to pay the current firm for their work over the last year?

Mo, email

The good news is that you are free to use the solicitors of your choice and you do not have to use the firm arranged for you by your insurer. We frequently take over serious injury cases from other firms, almost always insurer-appointed firms.

Your new solicitor will send you a form of authority to sign instructing the current firm to release the file to the new solicitor. The new solicitor will usually provide an undertaking to the other firm confirming that they will preserve the old firm’s entitlement to costs and that those costs will be included in the claim for costs at the conclusion of the claim. Therefore you need not worry about having to pay the costs incurred to date. It is very rare for a firm to dig their heels in over costs when a legal undertaking can be given by the new firm.