A bit of advice please .....

[Prforone]

Please bear with me - this could be a little long-winded ......

My friend (let's call her Friend 1) has her own business. Used to have an assistant, and the relevant employee liability insurance, but had to let her go when business became slow due a few years back. Didn't renew the insurance as she's been running the business single-handedly since then.

However, of late business has picked and another friend (Friend 2) offered to help out when needed. No contract signed, cash in hand, just a mate helping a mate through a busy period. Friend 2 worked the odd day here and there for three weeks from when she first offered to help out, then went away on holiday for a couple of weeks. Friend 1 had no idea at that point whether Friend 2 would continue to help out on her return from holiday or even if help would be needed by then.

Fast forward to Friend 2's return from holiday and she offered to do some more work if needed. Friend 1 very gratefully accepted. First morning back at work, Friend 2 slipped whilst holding some glass, which did some really bad damage to her arm - severed tendons and artery. Friend 1 called an ambulance and went to help, at which point Friend 2 said not to do anything. The reason? She announced she was HIV positive.

Long story short - Friends 1 and 2 went to hospital. Friend 2 got sorted out, however may need surgery.

Friend 2 has now said she plans to sue Friend 1. Friend 1 believes she doesn't have a leg to stand on as she has no employee liability insurance in place, seeing as she usually works by herself.

I appreciate this is all a bit of a minefield but does anyone have an idea what her, and Friend 2's, rights are please? With no contract in place and working cash in hand ad hoc, does Friend 2 have grounds on which to sue? And should she have declared her condition to Friend 1 prior to working with her? I only ask that because before I started my current job (for a large employer) I had to declare my medical conditions.

Friend 1 is in no way trying to screw Friend 2 over but just wants an idea of where she stands on this. She understandably is very concerned that she will now lose the business she has built up over the past 20 years.

Any advice gratefully received.

[prh47bridge]

Whether or not friend 1 had insurance in place is irrelevant when considering whether or not friend 2 has a case. The question is whether or not the accident was caused by friend 1's negligence. If friend 1 was negligent she is liable. If she was not negligent she is not liable.

On the basis of the information you have given friend 1 was employing friend 2. The fact there was no written contract is irrelevant. Friend 2 was working and being paid. Friend 1 was therefore required by law to have employer's liability insurance in place (unless friend 2 is a close relative). She could be prosecuted for this omission. It may also be used by friend 2 as evidence supporting her case that friend 1 was negligent. It doesn't directly prove negligence but it suggests that she was not taking her responsibilities as an employer seriously.

Employees are not required to tell their employers their medical history. If friend 1 had asked friend 2 to complete a medical questionnaire and friend 2 had lied about her HIV status that could be a breach of trust. However, friend 2 would have been within her rights to refuse to answer the question. If friend 1 didn't ask friend 2 was under no obligation to volunteer the information.

Unfortunately as friend 1 is not insured she will have to pay friend 2 out of her own pocket if damages are awarded. One consideration for friend 2 is whether it is worth proceeding given that friend 1 is uninsured. She (friend 2) could end up out of pocket if friend 1 can't afford to pay.

If friend 2 is expecting a big payday she may need to adjust her expectations. Quite apart from the ability of friend 1 to pay, if the injury healed quickly with no long lasting effects any compensation awarded may be quite low. A lawyer specialising in personal injury could advise but a quick Google suggests she could be looking at less than £5,000.

[Prforone]

Thank you so much for clarifying. It's a great help.