21 June 2021
An employer has a duty of care for safety at work. Case law makes clear that this duty of care goes far; the employer must prevent accidents at work as much as possible.
This starts with setting clear safety rules and ensuring that those rules are adhered to. The employer is liable for an accident at the workplace, unless it can demonstrate that it has fulfilled its duty of care.
A recent decision by the court of appeal demonstrates that this is not easy for an employer in practice.
In the case, the employee had been injured in the hand. The question the court had to answer was whether the employee’s injuries had occurred while working for the employer. The details of the case were as follows.
On July 13, 2013, the employee sustained an injury to his hand. According to the employee, this injury had arisen while working for the employer. When replacing the knives of the fish filleting machine, a knife got out of balance. When the employee reflexively caught the razor-sharp knife, three of his fingers were largely cut, the employee argued.
The employee held the employer liable for his personal injury. According to the employee, the fish filleting machine was not safe because a safety catch was missing. In addition, the employer had not provided any safety gloves or given instructions on how to change the blades. The employer had therefore violated its duty of care, according to the employee.
The employer disputed that the employee had sustained the cut while performing his work. According to the employer, there was no evidence of this, and the Labour Inspectorate could not establish this with certainty. If an occupational accident had taken place, according to the employer, this was due to intentional or deliberate recklessness on the part of the employee.
According to the court, the employee had succeeded in proving that he had suffered an industrial accident during his work. This was evident from witness statements and medical documents. The court ruled that it was then up to the employer to demonstrate that it had taken all safety precautions. The employer had to do this by arguing concretely that the machine complied with the safety requirements and that it had given the employee sufficient instruction on how to use it. The employer had not succeeded in this. In addition, the employer had not demonstrated that the employee’s injuries were caused by his own intent or deliberate recklessness. According to the court, the employer had thus violated its duty of care.
In this lawsuit, the employer was given one more opportunity to provide concrete evidence of its assertion that it had fulfilled its duty of care. The procedure will therefore be continued.
This ruling again makes clear that the scope of the duty of care is broad. The courts will easily assume that the employer has failed to fulfil its duty of care.
The main rule here is that if the employee can prove that he has suffered damage while performing his work, the employer must then prove that it has complied with its duty of care. The employer is therefore expected to have taken the required measures to avoid the risks known to it.
It is also up to the employer to demonstrate and substantiate that the damage is due to intent or deliberate recklessness on the part of the employee. In many cases this will be difficult to prove.
The employer’s duty of care also extends to the employee’s possible home workplace, a topic that particularly will be relevant as long as these corona times continue. Consider, for example, injuries caused by incorrect working posture. Your organisation must first provide a safe (home) workplace. It is also advisable to inform employees about the correct work posture.
Do you have a question about injury in the workplace or the employer’s duty of care? Please do not hesitate to contact me.
Arnhem-Leeuwarden Court of Appeal, 16 March 2021, ECLI (abbreviated): 2488.
This article was first published on Rendement.nl
