Sex a work-related accident? So far, only in France
The mass media are currently dealing with a French court’s ruling that the death of an employee during sex on a business trip had been a work-related accident. The employer´s liability was not diminished even by the fact that it happened late at night and not on the premises of the hotel that the employer had arranged for the employee. As curious as this may sound, French law is known for a high level of employee protection. In the Czech Republic, some cases of work accidents appearing before the courts have been almost equally mind boggling. What should Czech employers watch out for?
For instance, an employee succeeded with a lawsuit against an employer in the case where the employee stepped out of the production hall to relieve himself (although there were indoor facilities), slipped on an untreated access road and severely injured his knee. The court granted the employer´s argument that the worker had breached the safety instructions that called on workers not to step outside the hall other than when loading materials. Yet, this was not enough to free the employer from liability for damage caused by the work-related accident. According to the court, the employer had partly caused the damage by not ensuring that the door was locked on that day.
In another case, a construction worker decided to take a cigarette break and sat down on a covered light shaft on the roof of a building. The cover collapsed under him, and the employee suffered severe injuries that rendered him fully incapable of working. The Supreme Court deduced that the employee’s injuries occurred during an activity which is usual at work, and as such were a work-related accident. At the same time, the court also admitted that there might be mitigating circumstances to consider, if it were proved that the employee’s direct superior had given him clear and specific instructions to ensure work safety and health protection. In the case in question this might even include oral instructions purportedly given by the foreman (literally “keep away from those f*****g light shafts, or else you’ll fall!”) setting the obligatory behaviour and explaining its reason. However, the employer would have to prove that such instruction had indeed been given before the accident.
Company outings and teambuilding events are a special category. The decision whether an injury suffered during an activity not related to work is a work-related accident often depends on its details. If an employee is injured during an activity that is formally or factually obligatory, it will most likely be treated as work-related. Even breaking one’s wrist during an employee volleyball match has been deemed work-related by the court because the employer had actively requested the employee’s participation in the game. If an employee is injured during a voluntary activity, it has to be considered whether the activity was carried out for the benefit of the employer. For instance, even a skiing injury suffered during a corporate event voluntarily attended by an employee had been deemed work-related, as the skiing trip had been organised and paid for by the employer, who had invited customers and a couple of employees to spend time together and build their relationship. Therefore, while the skiing itself had not been obligatory, the court still regarded the injury as a work-related accident, as the employee objectively carried out an activity for the benefit of the employer.
In practice, when assessing liability for employee´s accidents, it often comes down to small things. While some of the above cases sound amusing, it is not so much fun for the employers. Even though they are covered by a statutory employer’s liability insurance, in some cases the insurers may seek to recover the funds paid to the employee from the employer – in particular if the accident occurred as a result of breach of work safety and health protection regulations, or if alcohol played a part in its occurrence. The employers should therefore avoid these cases.