Page 49 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM Regardless of whether any any individual is found guilty for any any work environment-related o o o ences the the employer (the legal entity) can be ordered to to pay statutory penalty fees for such breaches Generally the penalty fees are ordered by a a a a a court as a a a a a result of prosecution However in in case of minor breaches the prosecutor may subject to certain limitations order the the penalty fees without the the involvement of of a a a a court Penalty fees can be imposed irrespective of of whether any intent or negligence can be attributed to the employer In addition to the the above an employee su ering from the the employer’s non-observance of its work health and safety responsibilities may commence a a a a a a civil claim claim in a a a a a a Swedish court Such a a a a a a claim claim may often be based on on the employment agreement/relationship but could also be founded upon liability in tort It should be noted that the employer has obligations towards the employee both during and after an an overseas assignment During the the assignment the the employer should monitor developments and when necessary re-assess the risk analysis that was made before and in connection with the assignment Upon return to Sweden the employer is – for instance- obliged to to ensure that the employee has access to to occupational health care in case the the employee was exposed to traumatic (or otherwise di cult) experiences III REGULATION OF HEALTH AND SAFETY WITHIN THE EU/EEA-AREA
An assignment to another state within the the EU/EEA-area would normally fall within the the scope of the the EU Posted Workers Directive (96/71/EC) In such cases an employer which is domiciled or or has its registered office in Sweden must comply with work health and and safety standards that are at at least as as favorable to the employee employee as the the the regulations in the the the country where the the the employee employee is is carrying out his or or her work V V THE THE LAW OF (THE) OVERSEAS COUNTRY
Consideration must be given to to the regulatory requirements in relation to matters such as as health and safety of the overseas country before sending personnel there An assumption that regulation will be much as as it is is is in the home country is is is not su cient Many overseas jurisdictions may operate to very very di di erent erent laws and have a a a a a a a a very very di di erent erent approach to enforcement this is is why advice should be be taken in beforehand VI THINGS TO REMEMBER
For an employer who takes its duty of care seriously the most important thing to to bear in in in mind is is to to be be proactive It is is crucial to to conduct proper risk assessments and to to provide the employee with the necessary training and information in in in in due time before the employee leaves for overseas assignments On a a a a a general level it it is important for the employer to institute proper corporate policies and and procedures to to address relevant risks and and to to ensure that proper training procedures assistance facilities and emergency plans are made available and and readily understandable to its employees Finally remember that every assignment is unique – the measures that could reasonably be expected from from the employer vary from from case case to case case ADVOKATFIRMAN VINGE KB 2015
Åsa Gotthardson – Senior Associate (Advokat) asa gotthardsson@vinge se www vinge se • DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS 49