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Title: Can I quit my job?

Date: 23 July 2014

MCN Law – Can I quit my job and claim?

Question

I have a question I would be grateful if you could answer.

In November 2013 I had a really bad accident which led to me being in hospital for 8 weeks. I still have an external fixator frame on my left leg and plates in my pelvis. I have tried to go back to work as a marketing manager for an event company although I am finding it difficult keeping up with the bits of work I can do and cannot travel to see clients and potential clients any more. If I resign can I claim my loss of earnings from the lorry driver who caused me to come off my bike?

I ask because my boss seems happy for me to continue as I am and is paying me the same money but for less work which I don’t feel comfortable with. Why should my boss have to put up with and pay the same for a less productive employee due to the careless idiot who caused my injuries?

Andy McEwan, Sheffield

Answer

You raise an interesting point and one that I am not asked much because you have an unusually sympathetic boss. Usually, if an employee is not able to fulfil his or her contractual obligations due to sustaining an injury then the employer is free to let the employee go if the employer cannot, by making reasonable adjustments, accommodate the employee or find them an alternative position within the company.

Your employer seems happy for you to stay on despite your limitations and the effect on the company’s profits. How long that will last, however, is another question.
The issue you will have is one of mitigation. As a Claimant pursuing a claim for compensation you are under a duty to “mitigate” your loss. This means keep your loss to a reasonable minimum. Voluntarily giving up your income will open you up to the Defendant’s allegation that you have failed to comply with your duty and if the court agreed it could lead to non-recovery of lost income.

Your solicitor needs to address the issue of job suitability with orthopaedic consultant who will be instructed in your case. You are undoubtedly disadvantaged on the open labour market and vocational rehabilitation may be the way forward. You should discuss this further with your solicitor. I do not advise that you consider resigning until you have had a detailed discussion with the relevant experts and your solicitor as the potential harm to your claim is significant and this needs to be handled very carefully and a considered decision reached.

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