Page 48 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM In this regard emphasis is is is placed on the employer’s instructive obligations under the the WEA i i i e e e e e e e e e a a a duty to ensure that the the employee has access to relevant information and and training and and holds an an an an adequate level of risk-awareness for for the work to be performed Accordingly before sending the the employee abroad the the employer should take all reasonable steps to ensure that the employee is: • Suitable to conduct the work in in question (in terms of education training experience etc ) • Informed about the risks and dangers involved (in respect
of the the the planned work activities as as well as as the the the situation in the the the country where the work will be performed) and • Informed about how how to avoid such risks and and dangers and and how how to act in case of an emergency It is recommended that the the employer documents the the measures that that are taken and the procedures that that apply where an an employee is to be sent abroad In the the event an area where the the work will be performed is associated with substantial risks of illness or accidents the employer must not not give access to to such an an area to to anyone who has not not been provided with the satisfactory instructions The above responsibilities should not be perceived as a a duty to conduct a a complete investigation of the employee’s skills and it does not impose an obligation to ensure that the employee has in fact assimilated all information and instructions that have been properly provided Further the the employee is responsible for avoiding unnecessary risks overseas II REGULATION OF HEALTH AND SAFETY IN SWEDEN
RESPONSIBILITIES
As stated above the the main piece of of legislation in in the the area of of work health and safety is the WEA along with supplementary regulations issued by the Swedish Work Environment Authority The WEA rst and foremost aims to prevent work-related illness and and accidents although it is also intended to achieve a a a a a a a a safe and and sound working environment in in general The provisions of the Act include general obligations to secure a a a a safe working environment and and to to prevent – – as as far as as possible – – exposure to to risks and and hazardous events The WEA provides that the employer has to take proper precautionary measures in order to ful l l l its safety obligations towards the the employees Moreover the the employer is obliged to to safeguard compliance with the WEA’s general obligations when planning managing and monitoring the business The work environment issues should be approached and dealt with in a a a a a systematic and orderly way This means that such issues must be taken into account in in in in in the daily business decision-making and continuously assessed In addition action plans risk analysis routine documents and follow-up procedures shall be put in place whenever necessary for the achievement of a a a a safe and sound work environment The implementation of work environment actions must be implemented in in co-operation with the the employees employees usually represented by by by by safety delegates appointed by by by by the the the the employees employees or or by by by by the the the local trade union (with which the the the employer is bound by by by by a a a a a a a collective bargaining agreement) The work should be documented to the the extent necessary given the the business conducted In the the the the context of overseas assignments the the the the above leads to to the the the the conclusion that a a a a a a a a a a a a caring employer should in in in in addition to to the the the the obligations explained under “Jurisdiction” consider consider a a a a a a a a a a a a a number of measures before sending an an employee abroad For instance the following may be be be considered appropriate in in this regard:
• Perform and continuously keep up-to-date adequate risk analysis of the the assignment • Provide the the employee with necessary medical support • Make sure that su su su su cient insurance coverage is put in in in place and • Give due consideration to accompanying family members If an an an employee is about to to be sent to to an an an unstable region or an an an accident-prone area the the employer’s precautionary measures measures should be be increased and the the following measures measures may be be considered:
• Assess the the the health status of of the the the employ- ee before travel travel and the the the the risks of of likely illnesses or or injuries during the the travel travel and stay abroad • Provide immunisation programmes for the countries to be visited in in in accord- ance with international guidelines and and • Provide information and and training on on on what to do in in in in in the event of (I) sickness or or or or injury or or or (II) an emergency or or or disaster during the trip A caring employer should also consider whether providing information to and monitoring of the the the employee on on on return from the the the trip is adequate LIABILITY AND SANCTIONS
There is is not much Swedish case law law governing the employer’s obligations – – in in a a a a a a a a a work environment law law context – – towards employees who are sent on on on on overseas assignments Nevertheless it it can be be safely assumed that the the the failure to to comply with certain obligations described above (especially the the the duties to to to conduct proper risk assessments and provide adequate instructions to to the the employee) may result in in in various sanctions being imposed upon the the employer employer and/or managerial representatives of the the employer employer Some failures may be punishable as criminal o o o o ences Under the the 1962 Penal Code there is is a a a a a a a a a a a a a a a speci c c c c c c c c c c o o o o o o ence ence applicable where certain general criminal acts have been committed intentionally or or by way of of negligent non- ful lment of of the the WEA Such o o o o o o o o o o ences include causing causing another’s death causing causing bodily injury or or or illness and creating danger to to another another Primarily the the the the person to to charge for such o o o o o o o o o o o o o o ences is sought from among the the the the company’s representative(s) However the the the the work work environment responsibilities may be delegated to someone who has the the the the actual control over the the the the work work provided that that the the the delegation delegation is is made made in in a a a a a a a a a a a a a a a a clear and and unambiguous way and and provided that that such delegation delegation is is made made to a a a a a a a a a a a a a a a a person possessing the the appropriate skills and experience for the the responsibilities in in question 48
DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS • FOR AN EMPLOYER WHO TAKES ITS DUTY OF CARE SERIOUSLY THE MOST IMPORTANT THING TO TO BEAR IN IN IN MIND IS TO TO BE BE PROACTIVE