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Employer’s duty of care in the event of an occupational accident

If the employee is fully trained in his or her profession, the employer is faced with less stringent requirements when it comes to instructing and supervising employees.
Employers have a responsibility to prevent accidents. However, the required degree of instruction and supervision provided for employees – for example, electrical engineers – depends on each employed professional’s prior level of training.

Following an occupational accident, an employee brought an action for damages against his employer before the Federal Supreme Court. The Federal Supreme Court was asked to assess the extent to which the employer’s duty of care applies.

According to the Federal Supreme Court, the employer’s duty of care includes the prevention of accidents which were not due to unforeseeable behaviour or gross negligence on the part of the injured employee.

With regard to the instruction and supervision of employees, the Federal Supreme Court ruled that less strict standards should be applied for employees who are fully trained and experienced in the profession concerned. Certain instructions, such as not remaining inside danger zones, do not necessarily have to be provided on the basis of the company’s current operations.

In this specific case, the injured employee must already have known on account of his previous professional experience that he was not permitted to remain inside danger zones. The court ruled that the plaintiff had acted with gross negligence and, therefore, that the accident could not be blamed on his employer.

Source: BGE 4A_611/2018 dated 5 June 2019

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