Employer's duty of care in remote work

Supreme Court, 5 December 2014

Facts
Employee was employed by an employment agency at a transport company as a driver. His job was to transport garden machinery to a company in Spain. While unloading the garden machinery in Spain, the employee sustained injuries. His toe became trapped under one of the forks of the forklift truck used in unloading. The tip of the toe had to be amputated as a result. The employee held the employment agency and the transport company liable. The subdistrict court and the court of appeal rejected the employee's claim because the employee was acting in violation of the instruction given to him not to help unload.

Supreme Court ruling
The subdistrict court and the court of appeal had ruled incorrectly, according to the Supreme Court. The Supreme Court held that the employer (both the employment agency and the transport company) has a duty of care for the safety of its employees. The fact that the accident took place in Spain does not change that.

Nor does the fact that the employee had been instructed not to help unload the load preclude the employer's duty of care. It was not always easy for the employee to determine whether an act should be counted as unloading. In this case, the employee argued that he went to help loosen the truck's tarpaulin because it was in danger of being damaged. The question is whether this fell under the instruction not to unload. The employer had not given instructions on how to act in case of problems during loading and unloading. Because instructions cannot always be clear to employees, and in this case they were not, the employer should have provided additional instructions on how to act in case of problems during loading and unloading. A factor here is that the location of the work prevented the employer from directly supervising compliance with the instructions it gave. The employer could not supervise the work because it took place in Spain.

Moreover, the employer should have provided safety shoes to the employee. With such sturdy safety shoes, the injury might have been preventable. However, the duty of care does not go so far that the employer also had to monitor whether the employee would actually put on the shoes. This was also impossible because the employer was not present on site.

The employer's duty of care (both an employment agency and a user company) extends far. The law demands a high level of safety to protect workers. Want to know in a concrete case whether the employer has breached its duty of care? Then contact contact with us.