The employer’s duty of care

In order to prevent employees from being harmed in the course of their work, the employer must take measures. These measures include implementing a health and safety policy and giving safety instructions to employees.

Attention to the employer’s duty of care has increased with the advent of the #MeToo movement and anti-discrimination measures. Also due to the the home-working policy during the Covid-19 pandemic and the increase in the number of long COVID patients infected in the workplace. Employers now are expected to do more than simply provide a safe working environment and atmosphere. They need to prevent workers from being harmed at work.

Seliz Demirci, an employment lawyer at GMW lawyers, discusses the content and scope of the employer’s duty of care in light of current topics.

Legal basis

Employers must prevent employees from suffering harm in the performance of their duties. Therefore, Dutch law stipulates that an employer must take necessary measures. The concept of harm includes both physical and psychological harm. Psychological harm is particularly relevant in the context of sexual harassment. Has an employer breached its duty of care? Then it is up to the employee to prove the existence of harm. He/she must also prove that this harm arose during the performance of his/her duties. If harm is proven to have occurred then the employer must prove that it is not liable. The employer’s liability is extinguished if it proves that it has fulfilled its duty of care. Is an employer unable to prove that it has taken the required measures for a safe working environment? Then it is liable. The bar for liability is therefore low.

Intimidation, sexual harassment and discrimination

The law does not set specific conditions for the fulfilment of the duty of care. Whether the employer has fulfilled its duty of care is assessed on a case by case basis. It is important to prevent intimidation, sexual harassment and discrimination in the workplace. This means that an employer is expected to appoint an internal or external confidential adviser. It may also be obliged to set up a complaints procedure. Not only does this allow the employer to demonstrate that it has fulfilled its duty of care, but it also allows those involved to know how to handle a complaint. Moreover, these measures can have both a repressive and a preventative effect.

The employer does not automatically fulfil its duty of care merely by setting up a complaints procedure and appointing a confidential adviser. An employer also has a duty to respond adequately and in a timely manner to a complaint of sexual harassment or discrimination. It must take complaints seriously and investigate them properly.

Working from home

The duty of care also extends to the home workplace, although the employer’s obligations are more limited than at an office or factory. The employer must ensure that the employee has an ergonomically equipped workplace at home. This means that it has to provide a proper desk that is large enough, an adjustable office chair, a properly adjusted monitor and associated tools. The duty of care does not mean that the employer has to buy everything new for the employee if the employee already has an ergonomically well-equipped workplace. The point is that the employer must establish whether and to what extent the employee has a proper workplace at home.

Preventing a burnout

The employer also has an obligation to implement a policy that prevents pressure from work becoming so high that the employee suffers a burnout. This can be achieved in part by reducing the workload of the employee. This obligation also applies when an employee is working from home – and perhaps even more so. Therefore, as an employer, it is important to ensure regular team consultation on work pressure and to provide information on maintaining a work-life balance. It is also important for employees to raise the alarm in time with their employer if the workload becomes too high.

Liability

An employer can be held liable if it has not fulfilled its duty of care towards its employees. If that liability is established, the employee may claim compensation for material and non-material harm suffered. An employment lawyer can explain your rights, risks and obligations to you, so that you can make the best possible decisions.

More information about the employer’s duty of care

If you are considering legal action, our team of labour law experts can assist you. Please do not hesitate to contact us via our online form.