Worker´s claims in the case of damage to health

Even for damage to health connected to work we must distinguish whether a dependent activity – employment, or independent actvity – self-employment was carried out. In the case of an entrepreneur suffering work injuries, damage is borne by him or her alone; only in the case that his or her injuries or illness were caused by another person, does s/he have the right to claim damage from this person under the civil code. From the legal point of view, in the case of an employee, damage to health can take the following forms:

Work-related injury

Work-related injury is

• "damage to health or death of an employee, if caused regardless of his or her will by a short-term, sudden and violent effect of external forces during the performance of work tasks or in direct connection with them." An injury may be classified as work-related independently of whether damage to the employee's health led to an inability to work or not. External forces can mean both human (damage to health caused intentionally) as well as mechanical, thermal or chemical energy. Work-related injury can be caused by psychological factors, too (e.g. by workload, or due to conflicts). Courts recognize as work-related injury even situations of a sudden strenuous effort, as a result of which the employee suffers from personal injury (e.g. collapse or heart failure) or a work situation under significantly harder conditions.
• On the contrary, a heart attack which an employee suffered after s/he was given notice of dismissal was not qualified as a work-related injury by the court.

Under the labour code, work-related injury is also an injury which an "employee suffered for carrying out work tasks" (e.g. when the employee is out of working hours and is assaulted because of his or her job). However, an accident/injury which occurs on the employee's way to work and back, does not qualify as work-related injury.

Occupatonal disease

Occupational disease arises during the exercise of a given profession; nevertheless, such a disease must be listed in the respective government regulation. For compensation for occupational disease the last employer for whom the employee had worked prior to the discovery of the disease and where the prevaling conditions gave rise to the disease shall be responsible. Given the proportion of the years worked, this 'last' employer can then seek a proportional compensation with those employers for whom the staff member had worked before.

Another injury resulting from the violation of legislation or from intentional acts against best practice: these cases do not classify either as work-related injuries or as occupational diseases. For illustration, let us think of a situation where the employer had not provided staff with work equipment and as a result of that, an employee fell ill with a disease; that is not listed as occupational disease.

Employer's responsibility for damage to health is always objective, i.e. the employer is also responsible for that damage that s/he could not and did not cause.

It is sufficient that the damage to health occurred while "carrying out work tasks or in direct connection with them" (e.g. while changing into the work clothing or during a work break). The only exception to the employer's liability is such a case when the damage was caused (also) by the injured employee. With a work-related injury, however, the labour code is even stricter on employers: Here, the employer may be entirely exempt from liability only if s/he can prove (the burden of proof is therefore on employers) that

• damage to health of the injured staff member occured by his or her fault: s/he broke laws, regulations, or other rules or guidelines intended to ensure safety and health at work, although s/he had been duly informed about these and their knowledge and compliance with them had been consistently required and controlled, or
• damage to health was caused by the intoxication of the injured employee with alcohol or by the abuse of other addictive substances and the employer could not prevent the damage, and these facts were the only causes of the injury.

Partly, the employer may disclaim liability for work-related injury if s/he can prove (the burden of proof is once again on the employer) that the damage resulted from

• as a result of the facts mentioned above – see (a) or (b) and that these facts were one of the causes of the damage,
• because an employee acted in conflict with normal behaviour so that it is clear that, although s/he has not broken laws or other regulations (but not the general preventive obligation) or guidelines to ensure safety and health at work, s/he still acted recklessly: and this despite the fact that given his or her qualifications and experience, s/he must have been aware of the possibility of causing damage to his or her health. Normal carelessness and actions resulting from work risks are not considered reckless conduct. In these cases, the employer shall reimburse the injured employee at least 1/3 of the damage.

The employer is unable to disclaim liability even partially in the cases where an employee has suffered a work-related accident while preventing damage to the employer or while avoiding danger directly threatening life or health, unless the employee had deliberately caused that situation.

In respect to damage to health, which is not either a work-related accident or occupational disease and for which the employer is responsible, the employee must demonstrate that there has been an infringement to legal obligations (e.g. breach of the obligation to ensure safety at the workplace), and that such a breach led to the damage to health (one can imagine that such a damage could be e.g. the collapse of an employee after s/he is notified by the employer that s/he shall not be paid his or her wages). Again, it is difficult to decide whether the employer had a real option not to breach the obligation or not.

In the event of a work-related injury, the employer is obliged to document it, and to report and clarify the causes of such an accident at work, together with the injured employee and the trade union organization.