Late last year, police released several CCTV footages showing grisly accidents that happened within Kampala metropolitan area, in an effort to caution motorists against reckless driving. Recently, this writer had the unpleasant experience of witnessing a motorcycle accident involving a young lady on what appeared to be her early morning travel to work.
Whether or not an employee (assuming she was one) can hold his or her employer liable to pay compensation for injuries suffered during travel to and from work is unclear and the provisions of the law remain largely untested.
The Workers Compensation Act (‘Act’) imposes liability on an employer to compensate an employee for any personal injury by accident arising out of and in the course of employment.
The Act provides that any personal injury by accident arising while the employee is travelling directly to or from his or her work place for the purpose of employment shall be deemed to be accident arising out of and in the course of employment.
A cursory reading of the provision may indicate that an employee injured enroute or from the work place is entitled to compensation from her employer but a further review of the authorities may lead to a different conclusion.
There has not been much litigation around this in Uganda but similar provisions have been interpreted and applied elsewhere. In Daya Kishan Joshi & Anor v Dynemech Systems Pvt. Limited for instance, the Supreme Court of India held that the phrase ‘in the course of employment’ suggests that the injury must occur during the currency of employment while the expression ‘out of employment’ conveys the idea that there must be a casual connection between the employment and the injury caused to the employee as a result of the accident.
In Saurashtra Salt Manufacturing Co. v Bai Valu Raja, the Supreme Court of India interpreted the phrase currency of employment and held that as ‘..a general rule, an employee’s employment does not commence until he or she has reached the place of work and does not continue when he or she leaves the place of employment, the journey to and from work being excluded.’
The House of Lords probably put the issue to bed in Smith v Stages when it held that “…a workman is acting in the course of employment when he is engaged in something he was employed to do. We can begin with the simple proposition that, in ordinary circumstances, when a man is travelling to or from his place of work, he is not acting in the course of employment. So a bank clerk who commutes to the city of London every day from Sevenoaks is not acting in the course of employment when he walks across the London Bridge from the station to his bank in the city. This is because he is not employed to travel from his home to the bank, he is employed to work at the bank, his place of work, and his duty is to arrive there in time for his working day”
Analysis and conclusion
The message from the authorities is that commuting to or from work places is not a process that occurs within the course of an employee’s employment and therefore an employer is not liable to compensate an employee injured in an accident enroute or from work.
The proposition appears to be based on the view that while travel to and from work grows out of, and is incidental to the employment, an employee travelling to and from his workplace is not, at the material time rendering any service to the employer as to require the employer to assume liability for injuries suffered.
The application of the law on this aspect is best illustrated. Take an example of a delivery man who gets an accident on his way to deliver a parcel and a front desk officer who gets injured on their way from home to office. It can be argued that the former is injured in the course of employment, which may not be the case for the latter.
This may sound like a ‘bite at the cherry’ for employers and insurance companies but caution is still paramount. For instance, the decisions mentioned above are not binding on our courts although some (such as Smith v Stages) have very high persuasive value. It is therefore possible that our courts may choose not to follow or apply these principles.
Situations may also differ because of certain nuances. For instance, if an employer insists on an employee using a certain route, the employee may succeed in a claim for compensation. Employers and insurance companies are advised to seek legal advice specific for their unique circumstances.