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The counterpart to employees' duty of loyalty is employers' duty of care. This requires employers to protect and care for their employees and refrain from doing anything that could conflict with employees' legitimate interests.
Employers' duty of care is unregulated by law. However, it encompasses numerous aspects that have been incorporated into the Code of Obligations and other laws, including the protecting employees' personality rights, data and assets and ensuring gender equality in the workplace.
Prohibition of overburdening work tasks
Employers must protect employees' personal rights, including their:
- life and health;
- physical and mental integrity;
- personal and professional honour;
- position and reputation at work;
- confidentiality and privacy;
- freedom of expression; and
- freedom of trade union organisation.
To protect employees' life and health, employers must take all measures which are necessary according to experience, the state of the art and the conditions of the business.
Further, employers cannot overburden employees or burden them with work to such an extent that their health is endangered. Employers must also protect employees from bullying. Further, employers must ensure that their employees are not discriminated against on the basis of their gender or sexually harassed. In particular, preventive measures must be taken against stress, bullying and sexual harassment. These include:
- education;
- providing clear instructions combined with penalties for non-compliance; and
- establishing contact points for the confidential reporting of such incidents.
In addition, employers must take decisive and effective action if such behaviour is evident in the workplace.
Employers have an increased duty of care with regard to apprentices. Apprentices are usually confronted with working life for the first time, are more dependent and require special protection. Employers must focus on vocational training and be exemplary in their behaviour towards apprentices with regard to professional ethics.
Employers also have an increased duty of care towards older employees who are about to retire and have worked for them for a long time. In case of dismissal, employers must examine other, milder measures to which each party agrees is reasonable before giving notice – namely, whether it is possible to continue employment elsewhere or take early retirement. If dismissal is unavoidable, employers must exercise their right of termination with particular care.
Employers may process their employees' data only insofar as it concerns their suitability for employment or is necessary for the execution of their employment contract. Otherwise, the Data Protection Act must be followed. According to the act, personal data must be procured lawfully. Personal data must also be processed in good faith and be proportionate. Further, employers must ensure the accuracy of the personal data being processed. If they fail to comply with this, they will violate their employees' personality rights. Monitoring and control systems must not be used primarily to control behaviour. Even a merely incidental control of behaviour must be proportionate. In addition, employees must be informed in advance of any monitoring and the use of their personal data.
Employers must protect employees' property rights. They must take precautions to ensure that employees can lock away their effects and protect them against theft. Employers must also comply with tax and social security laws during employment relationships. In addition, they must inform employees about the social security schemes with which they are insured.
