Page 12 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM If an an employee su ers an an industrial injury while on assignment abroad there are examples in in Danish case law where in in some cases the the employee may claim damages under the the Danish Liability for Damages Act from the the Danish employer In the the assessment of the the Danish Danish employer’s liability in such cases the the Danish Danish courts have established on on a a a a a a few occasions that the Danish Working Environment Act is not directly applicable outside of Denmark but the the principles which follow from the the Danish Working Environment Act may be applied in order to assess whether the the Danish employer is is liable The crucial factor here is is whether having regard to to all of the the circumstances involved the the case has the the strongest ties to Denmark In a a High High Court Court Judgment from 2010 for example the High High Court Court held that a a a a travelling eld eld engineer who was injured while working in in China was entitled to damages from his Danish employer The employment contract had been concluded in Denmark where the the the parties were based the the the main work address of the the the eld engineer was was in in in Denmark the work in in in China was was carried out separately from the local employees and all necessary communication took place directly between the the eld engineer and the the o ce in in Denmark On that that basis the the High Court held that that the the ties to Denmark were such as as to to to make the the employer subject to to to the the duty to to to act reasonably and the the duty of care imposed on employers under the the general rules of Danish law in in in connection with industrial injuries – which among other things build on on on the the the principles mentioned in in in the the the Danish Working Environment Act However the High Court also said that that it was evident that that the the provisions of the the Danish Working Environment Act were not directly applicable in in China and in the the assessment of liability weight was also given to the the fact that in case of assignments abroad employers have no or only limited in uence on on on the the organisation of the the workplace and no or or or only limited opportunity to supervise the work Therefore in light of Danish case law it cannot be ruled out that a a a a a Danish employee who su ers an an injury at work/while on assignment abroad would be entitled to damages from the Danish employer and that in their assessment of liability the the Danish courts would also consider the the principles of the the Danish Working Environment Act Consequently Danish employers which assign their employees to to work work abroad should ensure to to a a a a a certain extent that the work work is performed under reasonable conditions and that the employee is is not exposed to unreasonable risk and danger while working abroad If the employee is assigned to work in in in countries involving particular exposure to risk or danger Danish employers should also ensure that the the necessary measures are implemented to allow the the employee to perform the the work in the the safest and healthiest conditions possible including that the the employee has been provided with the the necessary information and and training to handle the the conditions Otherwise the the employer risks a a a a claim for damages if the the employee is is injured while working abroad Consequently it is is advisable for the employer to consider a a a number of measures before sending an employee abroad For example the following may be considered appropriate in in this regard:
• Check up on on on the the working conditions that the the employee may expect abroad • Give the the employee the the necessary information and instructions before the the assignment in order to prepare the the employee • provide the the employee with the the necessary medical insurance • Give due consideration to the accompanying family members If the employee is about to to be assigned to to an unstable region or an accident-prone area the employer’s precautionary measures should be be increased and the following may be be considered: • Assess the the the health status of the the the employee before the the the assignment and and the the risks of likely illnesses or injuries during the the travel and and stay
abroad (within the the limitations of the the Danish Health Information Act) • Provide information and training on on what to do in in in in the event
of sickness or an accident It is important to note that employees also have certain obligations under the the Danish Working Environment Act Among other things the the employees must comply with the the health and safety regulations and and instructions which apply to the the employer in in general and and their own work in particular If an an employee becomes aware of any errors or or or de ciencies which may a a a a a a ect health or or or safety and cannot be remedied by themselves they must inform the the the employer An employee’s failure to meet the the obligations under the the Danish Working Environment Act does not generally lead to any direct sanction under the the Act However it may reduce the the employer’s liability to pay damages under the Danish Liability for Damages Act if the employee is contributorily negligent THE NECESSARY MEASURES ARE IMPLEMENTED TO TO ALLOW THE EMPLOYEE TO TO PERFORM THE THE WORK
IN THE THE SAFEST AND HEALTHIEST CONDITIONS POSSIBLE INCLUDING INFORMATION AND TRAINING 12 DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS •