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Tuesday, February 09, 2016

The Employer’s Duty of Care for Employees

By , filed under: Civil

Under St. Maarten law there exists a duty of care for the employer to protect his employees from harm at the workplace. The employer is under the obligation to protect his employees’ safety and health.

This means that the employer must take all reasonable precautions to prevent his employees from suffering (health) damage during the performance of his or her work. This involves both accidents and occupational disease (e.g. asbestosis).

According to strict caselaw, it needs to be assessed whether the employer took sufficient specific measures to prevent unsafe situations at the workplace. The term “workplace” has a broad meaning and also includes company events and, if the employee works at home, even his workplace at home. An example that perfectly illustrates how broad the term “workplace” is, can be found in the case in which the courts found an airline company liable for damage of a pilot resulting from an accident with his taxi in a (foreign) city where the pilot was on his way to the airport.

From case law it becomes quite clear that the criterium, that the employer must have taken sufficient precautions to prevent injury to his employees, is not easily met. Although the legislator meant to introduce a liability for employers whom can be made a reproach of the accident or disease, the caselaw inclined to almost become a risk liability for the employer, and employers were easily found liable by the courts for even the most common accidents. Recent case law however shows that this caselaw is a bit on its retreat. An employer was, for example, found not liable for an employee who cut herself in the finger with a knife while slicing sandwiches. But, under older case law this easily could have been the case.

If it can be determined that the employer violated his duty of care, then he will, in principle, be liable for his employee’s damages. This is only different if the employee acted with intent or gross negligence. However, from steady case law it becomes quite evident that the courts do not easily rule that such is the case. If the employee is able to prove that he suffered damages during the performance of his job, the employer will need to prove that he fulfilled his duty to care or that the damages are the direct result of the intent or gross negligence of the employee.

The conclusion is that the employer must take all necessary safety precautions to protect his employees from physical harm, whether it be an accident or an occupational disease and he needs to take this responsibility very seriously, because it is evident from case law that courts tend to hold employers easily liable for such damage. It would therefore be sensible for employers to have adequate insurance against such liability.