The employer has a duty of care to prevent an employee from suffering damage in the performance of his duties (Article 7: 658 CC). This duty of care is regularly corrected, as always the question can be asked what the duty of care is in a particular case.
Similarly, in the event of an accident at the Court of Justice in The Hague on 8 July 2014. A scaffolding builder has fallen through a corrugated roof when building a scaffold. The employee was wearing an armor belt, but he was not lined up. The employee has held the employer liable for the consequences of the accident.
The article about the employer’s duty of care does not imply that there must be absolute guarantee that accidents remain, even in non-risky occupations. However, there should be a high level of safety in the work space, tools and tools and the organization of the work. An employer may be required to supervise compliance with instructions given by him.
The Court considers that, in the case in question, the employer has a comprehensive security policy, but it has not been sufficiently shown that the employer has also warned sufficiently for the dangers of working at high altitude in order to enforce it. The employer has insufficiently supervised compliance with the instruction at all times to stay aligned with the construction of a scaffold. It may be that the risk of accidents can never be ruled out and that the employer is difficult at any time to check whether an employee is leased, but that does not mean that the employer can expect a certain degree of supervision on the actual compliance of the safety instructions in practice, according to the Court. The employer is liable for the consequences of the accident. For example, this employer should discuss the specific dangers of the assignment with this employee, in addition to repeatedly warning the risks.
In a procedure for employers’ liability that I had myself, my client was able to demonstrate that a careless employee who had injured his finger in performing his work as a metalworker at a seat was specifically instructed on how to become a banker and the possible consequences if, for example, it is done inadvertently. In that case, the employer’s liability was rejected by the canton court and that verdict was confirmed in appeal.
According to law and jurisprudence, an employer has a high level of occupational safety in the workplace. In this regard, an employer is required to provide comprehensive (safety) instructions. But besides, it is important that it can be demonstrated that those instructions are actually given. It would be a bad thing if an employer is in compliance with all requirements and that he is held liable for damage resulting from a business accident only because he can not prove that he has fulfilled his duty of care.
If you have a question about this blog, you want to know how to meet your employer’s duty as an employer or if you have an employee liability question, please contact us. We are happy to serve you.