17 June 2020

Employers, the duty of care is broader than you think

By Seliz Demirci

An employer is obliged to provide a safe working environment to their employees as part of their duty of care.

The judgment discussed below demonstrates that this duty of care is broad. The employer in question was found liable for damage suffered by an employee in an accident, even though the employee violated the work instructions. What exactly happened here and how can you avoid liability?

The accident in question took place when the employee, together with two colleagues, was working with glass panels weighing 340 kilograms each on top of a work of art. The artwork was a steel structure in the shape of a tree and the glass panels formed, as it were, the canopy. All the panels were already installed, but two panels had to be moved slightly. The employee and his colleagues used a different method than the one communicated in the employer’s instructions. The first panel was successfully shifted, but the second was not. While moving, the panel started to slide and slide off the tree. As a result, more panels fell to the ground. The employee and his colleague also fell from the scaffolding. They were not wearing safety harnesses.

The employee sustained a pelvic and spinal fracture and held the employer liable for his damage.

Safety harness

The employer believed that they had fulfilled their duty of care and were therefore not liable. The employer stated, among other things, that:

  • the company and its personnel were VCA certified;
  • monthly meetings were organised in which the dangers of working at height were discussed;
  • the execution of the work was discussed in detail with the foreman on site (one of the two colleagues with whom the employee carried out the work);
  • there was daily supervision.

On the day of the accident, the foreman had still had contact with the project leader. It was agreed, among other things, that during the execution of the work the employees would wear safety harnesses that were attached to horizontal beams (the canopy). According to the employer, the accident would not have occurred if the employee and their colleagues had followed the previously issued instructions.

The judge ruled that the employer had nonetheless violated his duty of care. The fact that the employer was not aware that the employee and their colleagues were using a non-compliant work method showed that the employer had not provided adequate supervision. As a result, the employer was unable to judge the working method. It was not important that the employer regularly organised safety meetings. These meetings dealt with general safety instructions, while this concerned unique work at height (with a risk of falling) of which the employee had no experience.

What does the scope of the duty of care mean to you?

An employer is liable for the damage that an employee suffers during the performance of their work, unless the employer demonstrates that they have fulfilled their duty of care or that the damage is the result of intentional or deliberate recklessness on the part of the employee. In addition to the prescribed safety standards, the employer must also take into account the probability that employees are not sufficiently attentive, the magnitude of the risk of accidents resulting from this, the seriousness of the possible consequences and any objections to the safety measures.

Instructions

The above statement shows that giving instructions is not enough. As an employer, you must tailor the instructions to the specific work. In addition, you should check whether the instructions are actually followed. How far this goes depends on the situation. In the above judgment, no specific appeal was made to the employee’s own fault and the judge did not give an opinion on this. Depending on the intensity of the supervision and the degree of own fault, it is possible that a different judge may have reached a different judgment.

The duty of care goes a long way, but it is not unlimited.

Do you have a question?

Please do not hesitate to contact me.

 

 

This article originally appeared in Rendement.

Seliz Demirci

Seliz Demirci

Lawyer

Within the Employment & Pension law section, Seliz advises national and international employers and employees on various employment law issues.

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