Judges more critical of employees’ own carelessness

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"Employer's far-reaching duty of care for employee safety"

Employer’s far-reaching duty of care for employee safety
Employers have a heavy responsibility to provide a safe working environment and to protect workers from work-related safety hazards. This duty of care does not include an absolute guarantee of worker safety, but the bar is very high. After all, the employer is in a relationship of authority with its employees and thus has primary control over the set-up of the work environment and the manner in which the work is to be performed. In other words, the employer itself is largely in control of safety at work.

The employee’s own responsibility versus the employer’s duty of care
So, what about the employee’s own responsibility? Does the employer’s duty of care extend as far as being liable for injury at work if the employee acts very carelessly or even in violation of work instructions?

As a general rule, the employee is only personally liable for the injury he sustained in performing his duties if he caused it with deliberate intent or recklessness. It follows from case law that this is rarely, if ever, the case. In addition, an employer must bear in mind that, at some point, employees will lose focus and will not always follow work instructions precisely.

Run-of-the-mill accidents in the workplace
Danger lurks around every corner. Many accidents happen as a result of the most trivial carelessness, such as slipping, bumping into a sliding door, falling down a flight of stairs or off a ladder, or missing a step. Is an employer now also required to explicitly warn its employees or take other measures to keep them safe from everyday risks and mishaps?

Diffuse picture in the case law
The picture in the case law in recent years has been very casuistic, not to say diffuse. For example, several judges have confirmed that certain everyday risks may be assumed to be sufficiently known even to employees who were not warned of and/or instructed about them, so that no specific duty of care applied to the employer. On the other hand, at least as many judges have also ruled that employers are required to take certain (additional) safety measures against everyday risks if such measures are within their sphere of influence. 

Judges increasingly critical of employees’ carelessness with respect to everyday accidents
Remarkably, judges in 2022 have been a lot more consistent. In fact, virtually all of the rulings over the past year have confirmed that employers were not liable for injuries sustained by employees as a result of everyday workplace mishaps (including falling from a ladder, tripping over a low-level obstacle and dropping a baking sheet); even in cases where the employer could, in theory, have taken safety or other measures and such measures would, most likely, have been able to prevent the accident. The deciding factor, in particular, was that these measures were disproportionate to the danger that could have been prevented, both in terms of the effort involved and the cost, especially where the employee concerned was an experienced worker who could be expected to be familiar with the presence of certain everyday risks.

Conclusion
There seems to have been a turnaround in that, in 2022, judges have ruled more consistently than before that there is no breach of a duty of care by employers in cases where employees are injured in the course of their work in an accident categorised as “run-of-the-mill”.  Nevertheless, employers would still do well to remain alert to relatively easy and cost-effective measures to prevent everyday accidents in the workplace. A heightened duty of care also continues to apply in respect of inexperienced workers.

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About the author

Tanya van Nieuwstadt

tvn@clintlittler.com

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Judges more critical of employees’ own carelessness

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Over de auteur

Tanya van Nieuwstadt

tvn@clintlittler.com

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