Working at height: pay attention to the pitfalls!

When working at heights, an accident with potentially major consequences is in a small corner. Employers must therefore go to great lengths to prevent accidents. This is called the duty of care. This duty of care can be (very) far-reaching, yet it is not unlimited, as a recent example from case law shows.

Duty of care of employer

Employers have a duty of care. They are obliged to ensure a safe and healthy working environment. The law requires employers to take measures reasonably necessary to prevent an employee from suffering harm in the performance of his job. This duty of care relates to the design and maintenance of the workplace and the tools with which an employee must perform the work. In doing so, the employer must give his employees concrete instructions on the use of the workplace and tools. In this way, the risk of accidents is reduced wherever possible.

Fulfilling duty of care

How the duty of care should be fulfilled depends on the exact work and the circumstances under which it is performed. The greater the risk to workers, the more attention employers must pay to safety measures. The duty of care when working at height is therefore comprehensive, because of the high risks involved.

Extent of duty of care

When working at height, there are also a large number of rules that must be followed. These include rules about the (safety) clothing to be worn and the use of certain safety equipment. In addition, employees must be regularly instructed on the rules and risks when working at height. These rules are all relevant when determining the extent of the employer's duty of care.

In spite of all measures taken, it can happen that an employee is injured while working at height. If it is subsequently determined that the employer has failed in its duty of care, this can result in a substantial cost to the employer.

Duty of care when working at height in practice

The duty of care extends far...

That the duty of care demands a lot from employers is regularly demonstrated by case law on the subject. For example, an employee fell from a ladder, which he was using to examine an air conditioner several meters up. The fall caused him significant injury. The employer had not instructed the employee on how to use a ladder and thus, according to the court, did not fulfill its duty of care. The employee was "too inexperienced" with working with ladders to assume that he could perform his job safely without instructions, the judge said. Consequently, the employer was required to compensate the employee for his damages.

... but is not unlimited.

Recently, another example from case law showed that the duty of care for working at height does have limits. Indeed, it is not reasonable in all cases to make the employer pay for the damage an employee suffers while working.

An employee was performing work on the roof of an equestrian center. He was using a harness with a lanyard connected to a cable stretched lengthwise across the roof. This allowed the employee to walk lengthwise across the roof in a secured manner and had several meters to move "freely" across the roof. At some point, the worker disconnected his fall line himself, stepped back a few steps and fell through a translucent roof sheet seven meters down.

The employee seeks to recover damages from the employer for allegedly failing to fulfill the duty of care. The court does not go along with the employee's contention. The employer has taken adequate measures and provisions to prevent the realization of fall risks. For example, the employer mapped out the risks as part of the RI&E, organized toolbox meetings about the dangers of working on a sloping roof, made an inventory of the risks at several times prior to the work, and provided its employees with the necessary facilities (such as lanyards) with instructions on how to use them. Accordingly, the court ruled that the employer had fulfilled its duty of care and that the employee's conduct was knowingly reckless and therefore for its own account. The employer is therefore not liable for the damages suffered.

That sounds logical because of the employee's alleged own fault, but conscious recklessness on the part of the employee is almost never assumed by the courts - precisely because that duty of care on the part of the employer extends so far. But meeting that strict requirement is therefore possible!

Tips for meeting your duty of care

To minimize accidents and liability for resulting damages when working at height, you must (continue to) ask yourself whether you are fulfilling your duty of care.

The following tips can help:

• Assess your organization's security policies;
• Map the risks of a project in advance with an RI&E;
• Instruct your employees about those risks;
• Take measures to reduce and/or eliminate risks;
• Also throughout a project, inform workers repeatedly about risks they will face, with inexperienced workers needing extra attention;
• Monitor and make checks for compliance with safety rules.

Despite the large body of regulations about and high standards of duty of care, it is not possible to completely eliminate all risks. Nevertheless, it is up to you to make an effort to maximize a safe working environment. This will help you avoid accidents and possibly liability if an employee is unexpectedly harmed. Do you need help identifying all the risks? Our attorneys specialized in labor law are ready to assist you.