Denmark: Workplace Duty of Care Does Not Extend to Parking Lot, Supreme Court Rules

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By Marcus Hoy

June 10—A May 28 Danish Supreme Court ruling (35/2014), which held that a company parking lot should not fall under workplace safety legislation, helps define the scope of an employers' duty of care, the lawyer that represented the company in the case told Bloomberg BNA. In a June 9 statement, Michael Steen Wiisbye of the Nielsen Norager Law Firm said that the Supreme Court had elected to allow the appeal because it addressed fundamental questions regarding the scope of an employer's duty to ensure a safe working environment.

Setting Boundaries

The case, which dates back to March 2006, concerned an employee injured after slipping on ice in a company's parking lot. The employee's union sued the company, Funen Publishing Corporation A/S, for compensation and loss of earnings, claiming that the employer had failed in its obligation to provide a safe work environment under the Danish Working Environment Act (1072/2010). The question before the court was whether a company's parking lot constitutes part of the work environment.

The complaint was initially heard by the local District Court, which on Oct. 10, 2012, ordered the company to pay 302,000 kroner ($45,000) plus costs after finding in favor of the complainant. The case was then appealed to the Eastern High Court, which on Sept. 24, 2013, found that the company was not liable. Following a further appeal, the Supreme Court upheld the High Court's decision.

While acknowledging that an employer has a duty to ensure employees can move safely in areas used for the execution of their work, a Supreme Court majority agreed with the employer's view that this liability should not extend to a parking area that is not used for the execution of work and was not an immediate entrance to the company's premises. Any compensation award, the Supreme Court ruled, would have to be made under the general rules on landowner liability. After assessing the measures that had been taken by the company to ensure safe conditions in the parking lot, the court dismissed the complaint outright.

‘Special Duties'

“This case is significant as it appears to restrict the rules on employer liability to the immediate company premises and entranceways and not to adjoining land which is owned by the company but is not used for the execution of work,” Wiisbye told Bloomberg BNA. “The disagreement was whether the detailed rules contained in health and safety legislation should be applicable in a situation such as this, where an accident occurred in a parking lot, which was not a place where work took place. The Supreme Court found that the accident site could not be considered a working area or access to a workplace, and therefore the provisions of health and safety legislation did not apply. All five Supreme Court judges agreed on this point.”

“In addition to the working environment rules, Danish case law and legal theory places a special duty on employers to ensure that employees can move safely in areas that are used during the execution of their work,” Wiisbye said. “Four out of the five Supreme Court judges agreed with the employer that these special duties should not apply to the parking area.”

“Instead, the Supreme Court agreed with the employer that the liability for injury should be based on the normal compensation rules for a landowner,” Wiisbye said. “That is to say, rules that would be applicable if a random passer-by had slipped in the company parking lot or on the sidewalk outside the company's premises. Although the measures taken by the company had not been sufficient to prevent the accident, four out of five judges agreed that the company had done enough to guard against accidents due to slippery winter conditions. The employer was acquitted under both the special provisions on employer liability and the ordinary rules of landowner liability.”

“In my opinion, the most interesting point is that the Supreme Court has set a limit for the application of the strict rules on employer liability,” Wiisbye said. “Injured employees and their trade unions have been trying to extend the application of these strict liability rules in cases concerning injuries that are, in one way or the other, connected with their work. But in this case, the Supreme Court has drawn a line and established that the liability rules should not apply when the employee gets injured in, for example, a parking lot which is not used for performing work and is not an access road leading directly to the workplace.”

To contact the reporter on this story: Marcus Hoy in Copenhagen at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

The Supreme Court ruling is available in Danish at http://www.hoejesteret.dk/hoejesteret/nyheder/Afgorelser/Documents/35-14.pdf.

For more information on Danish HR law and regulation, see the Denmark primer.