A report from the Association of British Insurers has found that whilst the number of fatalities and serious injuries arising out of accidents has fallen significantly, the number and value of personal injury claims has increased sharply from £8.8 billion in 2006 to an astonishing £9.6 billion in 2009.

The number of road traffic accident fatalities fell by 14% between 2007 and 2008 (down from 2,946 in 2007, to 2,538 in 2008). During the same period, the number of fatalities and serious injuries reported to the Police fell 7% to 28,572.

What accounts therefore for the increase in the numbers of claims? The two main factors appear to be an increase in the nature and extent of the compensation culture in the UK and fraud. Simon Douglas from AA Insurance believes that the rise in the numbers and value of personal injury claims is accounted for by the fact “that those involved in accidents are much more inclined to make personal injury claims, even for non-serious injuries such as minor whiplash cured by painkillers over a couple of days, which in the past, people would have just not bothered to claim for".

Another potential factor is the increase in the number of fraudulent claims. The most faked type of claim is a whiplash injury caused by a rear end shunt. Indeed, a survey of GP’s by Liverpool Victoria Car Insurance found that 98% of GP’s stated that they had seen a patient whom they believed was exaggerating an injury in order to claim compensation, whilst 85% said that they had seen a patient whom they believed was completely making up an accident/injury in order to bring a claim. The study found that 88% of the suspected fraud related to whiplash type injuries. Claims for stress and depression are also another common type of faked claim, as are slips and trips, particularly pavement trips. Dr Harry Brunjes said of the findings that “the medical profession always has been, but is increasingly sensitive to individuals who could potentially defraud their employer or insurer as a result of exaggeration or even fabrication of clinical signs and symptoms. As a profession, it is important that best practice is maintained and medical certification is only issued for those with genuine diseases and injuries and not those with inappropriate illness behaviour, whatever its manifestation.” 

The Insurance Fraud Bureau report that fraud pertaining to whiplash injury claims (known as ‘crash for cash’ fraud) costs the insurance industry about £125 million per year, with fraud overall costing it £350 million per annum. This has a knock on effect for insurance premiums. In terms of ‘crash for cash’ fraud, criminal gangs have been known to stage car crashes and then bring fraudulent claims in relation to them. Glen Marr from the Insurance Fraud Bureau states that “We have a list of 125 hotspot areas where we know networks are operating. The higher up the list, the higher the likelihood of innocent drivers being caught…As we target areas of high activity, unfortunately…the gangs move on to new areas. So, as some postcodes come down our hotspot list, others go up. The whole experience can be very distressing and emotional for the driver [tricked into going into the back of the fraudsters vehicle] who is completely innocent, but [the fraudsters] don’t care about that. They will often target vulnerable motorists, such as the elderly, or someone on a mobile phone or who is eating. The whole business is very slick and organised. These are professional criminals who, when we do pursue cases, turn out to also be involved in drug and people trafficking and mortgage fraud. The worry is they used to only operate in very slow-moving traffic. But they are becoming more aggressive and will now slam on the brakes in much faster-moving and dangerous situations.”

The Equality Act 2010 (EA 2010) comes into force on the 1st October 2010 and it has widespread ramifications for employment law.

The principal objective of the EA 2010 is bring together all of the UK’s anti-discrimination legislation that has been introduced since the 1970’s under one piece of legislation and to simplify and harmonise it (e.g. the Disability Discrimination Act 1995, the Race Relations Act 1976, the Sex Discrimination Act 1975, the Equal Pay Act 1970, etc). In this respect, its aims and objectives are similar to those of the Civil Rights Act 1964 in the United States and the European Unions Equal Treatment Directives.

The main provisions of the EA 2010 are as follows:-

• Where employers have been found guilty of discrimination, Employment Tribunals can now demand that they implement changes to prevent further discrimination.

• The law relating to harassment is extended so that employees can bring a complaint for harassment even where it is not directed at them personally, so long as they can show that the harassment created an offensive environment for them to work in. Furthermore, employees can also bring a claim where third party harassment takes place. That is, employers can potentially be held accountable for harassment by persons they don’t employ (i.e. customers and suppliers).

• Associative Discrimination: this is a type of claim that is now being extended to all areas of anti-discrimination law. It can be brought where an employee can claim direct discrimination (i.e. less favourable treatment) because they are associated with a person who has a certain protected characteristic (i.e. disability, sex, race, age, etc). This previously only applied to race discrimination, and discrimination by reason of sexual orientation, religion, and belief.

• Discrimination Arising From Disability: this is a new type of claim in which those with a disability can bring a claim where they feel that they are being discriminated against by their employer in terms of being treated less favourably as a result of an issue arising in consequence of their disability. This was brought in to counter the problems caused by the decision in the case of London Borough of Lewisham v Malcolm (2008). As a result of the Malcolm case, disability-related discrimination became much harder to prove because in that case, it was decided that the correct comparator was a non-disabled person with similar circumstances. Essentially, what this meant was that employers were able to defeat disability-related discrimination claims because they were able to show that a comparator would have been treated in exactly the same way. The new type of claim of discrimination arising from disability attempts to eliminate this problem. It removes the need for a comparator and the employee now simply needs to show that the less favourable treatment relates to something arising in consequence of their disability (and not the disability itself). Nevertheless, an employer will have defence if they can demonstrate that the less favourable treatment is a proportionate means of achieving a legitimate aim or they were unaware of the disability.

• Discrimination By Perception: this is another type of claim which is being extended to all areas of discrimination law. It is a claim which can be brought for direct discrimination (i.e. less favourable treatment) where an employer believes the employee possesses a protected characteristic (i.e. age, sex, race, disability, etc), even if they don’t. Previously, this only applied to age discrimination, race discrimination, and discrimination by reason of sexual orientation, religion, and belief.

• Indirect discrimination (i.e. a practice, criterion, policy, etc that is applied to everyone, but creates an unjustifiable disadvantage for a particular group who share a protected characteristic) is now extended to apply to disability and gender reassignment discrimination as well as those areas it previously applied to.

• During recruitment, employers can no longer ask questions about a candidates health except where they apply to essential aspects of the job (e.g. heavy lifting)

• To be eligible to bring a claim for discrimination by reason of gender reassignment, Claimant’s no longer need to have been under medical supervision (i.e. the legislation now also protects those who have not undergone any medical procedures as well as those who have).

• In terms of employers justifying certain actions, there is now a new single objective test which replaces the different tests that used to apply.

• The ‘List of Capacities’ re disability discrimination is now being removed as it was viewed as being unduly restrictive. Instead, Employment Tribunals will now be left to make a ‘common sense’ decision on whether an impairment has a substantial effect on day to day activities.

• The EA 2010 as originally intended, allowed employers to take ‘positive action’ re under-represented groups. However, this part of the legislation will not be coming into force on the 1st October 2010 and the new Coalition Government may decide to remove it from the Act altogether. 

• Equal Pay: employees can now bring a claim for Direct Pay Discrimination, even where no actual comparator can be found so long as they can show that they would have received higher pay had they been of the opposite sex (i.e. by using hypothetical comparators).

• Pay secrecy is now outlawed

• Dual Discrimination: The EA 2010 introduces protection against dual discrimination whereby it is now illegal to discriminate by treating an employee less favourably because of a combination of two protected characteristics from the following group: sex, race, disability, age, sexual orientation, religion or belief, and gender reassignment. 

In the case of Community Dental Centres Ltd v Sultan-Darmon (2010), the Employment Appeal Tribunal (EAT) held that where there is an absolute right of substitution in a contract, then the individual concerned can neither be classed as an employee nor a worker.