General Secretary

Winter 2018 | 13.12.2018

Assaults, injuries, compensation and pay

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In my article this month I want to focus and remind members and local committees of the provisions of the Civil Service Management Code (CSMC)

It would appear that HMPPS also fail to recognise the rules which must be applied locally by the Governor and SMT, often relying on ill-advised guidance from Shared Services.

It is clear that the workplace is more violent and, as a consequence, members are facing life changing and career ending injuries as a result of assaults in and out of the workplace. It is only reasonable to expect that the employer would do everything to assist their employee in these situations. Unfortunately, all too often this isn’t the case as members face financial hardship, un-necessary stress and anxiety due to maladministration of the rules. The employer also refuses to accept liability often leaving the member disadvantaged and reliant on the Criminal Injuries Compensation Scheme.

More and more staff are now reporting sick following the effects of second-hand exposure to NPS and/or other substances and the employer refuses to grant sick leave excusal. This often leads to formal monitoring and possible dismissal. Something that should not occur if the employer follows the rules.

The level of injuries sustained at work are consistent and all too often these are classed as non-fault accidents by the employer leaving members fighting for justice. This is despite the shortages of staff, poor risk management and lack of investment and maintenance.

So, what can the POA do to protect the interest of our members?

The provision of pay and administration of the CSMC is clear and I have set out the relevant sections
for reference.

CSMC 9.5 Sick Absence

9.5.1 In determining for their own staff the terms and conditions for absence due to incapacity because of illness (i.e. sick absence) and for payments related to such absence, departments and agencies must abide by the following conditions.

Conditions

9.5.2 The rules of a department or agency must prescribe:

a. that staff who are sick are allowed to be absent from their place of work;

b. the time limits within which sick pay and absence are allowed; and

c. that satisfactory evidence of incapacity is provided before sick absence is allowed.

9.5.3 Departments and agencies must ensure that:

a. sick absence is managed effectively and kept to a minimum, using monitoring arrangements which trigger management action when a sick absence record could be cause for concern;

b. sick absence is granted only if there is a reasonable prospect of a return to work;

c. annual leave is not taken instead of sick absence;

d. sick absence is recorded and made available to the contractor to the Cabinet Office for the collation and analysis of sick absence statistics;

e. any Social Security benefits that are payable during sickness or injury are subsumed within the limit of full pay. A notional amount representing a Social Security benefit must be deducted from full pay if the member of staff decides not to cash
the benefit;

f. where arrangements are made for sick pay at pension rate, they obtain a calculation of the amount of sick pay at pension rate from their pension awarding authority; and

g. the minimum level of sick pay for re-employed pensioners plus any pension is no lower than the amount they would have received from a reassessment of their pension awards had they ceased work on the first day of sick absence. The pensions paying department or agency must continue to pay any pension at the rate already in issue.

9.5.4 Sick Pay at pension rate must be increased in line with pensions increase legislation.

9.6 Absence due to Injury, Disease or Assault at Work

9.6.1 Departments and agencies must operate the following rules and procedures where absence is due to:

a. injury sustained or disease contracted in the course of duty;

b. injury resulting from an assault in the course of duty or clearly connected with duty.

Injury or disease / Absence

9.6.2 If a member of staff is absent due to an injury sustained or a disease contracted in circumstances that satisfy the qualifying conditions for injury benefit under the Principal Civil Service Pension Scheme, departments and agencies must:

a. provide six months’ injury absence on full pay before normal departmental or agency sick pay arrangements are applied;

b. where delegated authority has not been granted, make application to Civil Service Pensions Division, Cabinet Office for the payment of injury benefit and any additional injury absence;

c. not make deductions from either sick pay or ordinary pay, on return to duty for: – disability benefit awarded under the Social Security Acts in respect of an injury sustained at work; or

– for an increase in disability benefit or disability pension during approved hospital treatment;

d. ensure that where any injury is due wholly or in part to the negligence of the Crown, the whole of such period of absence, or proportionate part thereof, does not reckon towards the time limits of the department’s or agency’s sick absence scheme; and

e. ensure that any proportion of any contributory negligence by the injured officer reckons towards the time limits of the department’s or agency’s sick absence scheme.


Claims for damages

9.6.3 Where a claim for damages lies against a third party, departments and agencies must:

a. require staff to include in the claim a specific amount for loss of earnings;

b. provide an advance of salary in place of any pay due for injury absence under paragraph 9.6.2a and/or any sick pay due under the departmental or agency sick pay arrangements;

c. require staff to repay proportionately any advance of salary where the claim for damages is wholly or partly successful; and

d. ensure that where all or part of the advance is repaid, a period representing the repaid advance does not reckon towards the limits of the department’s or agency’s sick absence scheme.

9.6.4 Where a claim for damages is against a third party who is a servant of the Crown acting during the course of duty, or where it is alleged that a breach of duty on the part of the Crown has caused the accident, departments and agencies must:

a. ensure that a civil servant in receipt of full sick pay does not include in the claim any amount for loss of earnings;

b. allow staff on less than full pay to claim damages for the amount that would bring their remuneration up to full pay;

c. allow staff to claim damages for any gross salary or wages that would have exceeded full sick pay had they not been absent due to injury; and

d. where necessary, apply the conditions at paragraph 9.6.3c and d above.

Assault / Absence

9.6.5 Any sick absence due to an assault in the course of duty, or when not on duty but clearly connected with duty, must not reckon towards the maximum period of sick absence allowed under a department’s or agency’s sick absence schemes.

9.6.6 Where an absence is due to such an assault, and no claim for damages is made, staff must:

a. receive full pay, less any Social Security sick or injury benefits; plus

b. any additions for excess hours, shift and night working payments, calculated on average hours worked over the immediately preceding calendar quarter.

Conclusion

The rules will not guarantee fair and just compensation or that members will be successful with compensation claims. However, if we force the employer to follow the rules it will assist members in their recovery because their pay will be correct and the current levels of stress and anxiety faced by many will be reduced. The POA was successful in the challenge to additional leave payments for additional hours worked and as General Secretary with the NEC I will continue to press for improvements to your pay, terms and conditions.

I wish you all a very Merry Christmas and prosperous New Year.


General Secretary