The Eastern High Court determined that an employer did not violate the Working Environment Act although the employee's behaviour specifically violated the Act.

BACKGROUND

In an attempt to shake off the grass of a front-mounted cutter on a lawnmower, the experienced employee held the cutter over the edge of a cliff above a track to shake off the grass, but the cutter and the employee fell down the cliff, and the employee was seriously injured.

The employer was charged with having violated section 45 of the Act concerning incorrect use of a technical tool, and the penalty provision referred to was section 82 of the Act. 

The prosecution service was then to prove that the employer was to blame for the injury either negligently or intentionally.

The employee explained that he had specific knowledge of the machine as well as the manual, and that he was also used to situations with grass sticking to the cutter. 

Other explanations also supported that the employee's behaviour was quite unusual.

THE RULINGS OF THE DISTRICT COURT AND THE EASTERN HIGH COURT

The District Court found that section 82, cf. section 86 of the Working Environment Act had been violated, and the employer was ordered to pay a penalty of DKK 40,000.
 
The employer appealed against the ruling to the Eastern High Court, which ruled in favour of the employer on 21 May 2014 stating the following:

"It is undisputed [by the employer] that the machine was used contrary to section 45 (1) of the Working Environment Act in connection with the accident. ...The question is then whether the employer in connection with this application may be subject to criminal liability under section 86 of the Working Environment Act by way of management failure as it is noted that no charges have been brought against the employer in accordance with the objective criminal provision of section 83 of the Act. 

[The injured party] explained that he had received instruction as to the use of the machine, that the manual was available at the employee's home in ...., that he always read the manuals of new machines, and that he was aware of the content of the manual.
Taking this into consideration together with the fact that the injured party's action must be considered to have been so unusual that it cannot be proved to be the fault of one or more persons attached to the employer or the employer as such cf. section 27 of the Criminal Code, thereby falling outside the employer's criminal liability, the Court finds in favour of the employer."

COMMENTS

The Eastern High Court ruling marks a clear disassociation from a statement from the Working Environment Service available at the time of the ruling. 

The ruling established that the subjective liability provision of section 82 of the Working Environment Act implies that an assessment must be made as to whether the employer is subject to criminal executive liability due to intention or negligence. If the employer is subject to executive liability, it must then be assessed whether section 83 (3) concerning impunity applies.
 
The ruling shows that a criminal action concerning working environment is not simply a formality without any possibility of acquittal for the employer as an employer having ensured proper training of an employee is, of course, not subject to criminal liability if the employee makes an extraordinary or inappropriate act in bad faith.

The content of this Newsletter is not, and should not replace, legal advice.

contacts

Finn Schwarz

Managing Partner