The formal employer is liable for damage suffered by the posted worker while working abroad

In case ref. Up-1514/22 of 18 April 2024, the Constitutional Court adopted an important decision in the field of employment law, as it assessed the liability for damages of a formal employer who, in accordance with the employment contract, had sent an employee to work abroad. On that issue, the Constitutional Court took the view that the formal employer in such a case could not be relieved of its liability for damages on the grounds that it was not present at the work site, did not supervise the work on the construction site and did not otherwise have direct control over the worker's work.

This judgment will have an important impact on dispute resolution between workers and employers in cases of accidents at work abroad. Workers will now have easier access to their rights. For further information and legal advice on employer's liability and other labour law issues, please contact Križanec & Partners Law firm in Slovenia.

Secondment abroad

Posting an employee abroad under Article 208 of the Labour Relations Act (ZDR-1) means that the employer temporarily sends the employee to work outside Slovenia, if this is agreed in the employment contract. An employee has the right to refuse to be posted abroad if there are legitimate reasons for doing so, such as pregnancy, care of a child under a certain age, disability, health reasons or other reasons laid down in the employment contract or collective agreement.

If the employment contract does not provide for the possibility of working abroad, a new employment contract must be concluded in the event of secondment for duration of the project or the work abroad. When the work abroad ends, the employer must ensure the employee's return to Slovenia. The contract of employment for work abroad must contain provisions on the duration of the work abroad, public holidays, minimum annual leave, remuneration for the work, additional insurance for health services abroad, other benefits and the conditions for returning to Slovenia.

Employers' liability for an accident at work abroad

Decision of the lower courts

In the present case, the Court of First Instance, in the fourth trial, dismissed the claim of a worker who had been posted to Turkey for compensation for an accident at work, concluding that the worker must reimburse the formal employer for the costs of the proceedings, as the formal employer did not organise the work at the construction site abroad. The Court of Second Instance upheld the employee's appeal in part and reduced the costs awarded, but dismissed the remainder and upheld the judgment of the Court of First Instance. The Supreme Court dismissed the application for leave to review.

Right to a safe and healthy working environment

The Constitutional Court reconsidered the opinion of the lower courts primarily in the context of the right to protection of labour under Article 66 of the Constitution, which obliges the state to ensure a safe and healthy working environment. The legislator fulfilled this obligation in Article 43 of the ZDR-1 and further specified it in the Act on Safety and Health at Work (ZVZD-1). According to this legislation, the provision of a safe working environment is a fundamental obligation of the employer. In this respect, the employer cannot relieve itself of this obligation by delegating professional tasks to an expert or an external service. It is the employer who is responsible for the choice of measures, organisation and provision of material resources. In order to ensure a safe and healthy working environment, the legislator has also provided that the employer is liable in damages for harm caused to the worker at work or in connection with work, including accidents at work.

The Constitutional Court's assessment

In the present case, the lower courts interpreted the concept of employer as a formal employer with whom the worker has a contract and, more broadly, as a de facto employer who directly organises the work and ensures safety in the performance of work. According to the reasoning of the lower courts, only the actual employer who organises the work on the construction site, has direct control over the work of the worker by giving him instructions for safe work on the site and by warning him of the dangers before starting work, can be held liable for an accident at work abroad. The Constitutional Court found that such an interpretation exempts the formal employer from responsibility for ensuring safe work, which is contrary to the provisions of ZDR-1 and ZVZD-1 and the constitutional requirement to ensure a safe working environment under Article 66 of the Constitution. Such an interpretation allows the formal employer to avoid responsibility even though the worker has an employment contract with the formal employer.

Accordingly, the Constitutional Court has taken the view that a formal employer must fulfil its obligations with regard to the safety and health of workers, regardless of its physical presence at the workplace. Since in the present case the lower courts violated the worker's right under Article 66 of the Constitution, the Constitutional Court annulled the contested judgments and referred the case back to the lower courts for reconsideration.

More information and legal advice

Križanec & Partners Law Firm in Slovenia has extensive experience in the field of employment law. Our lawyers provide expert advice and legal representation to employers and employees in all employment law proceedings. For further information and legal advice on employers' liability and other employment law issues, please contact our employment law experts, Attorney at law Dinar Rahmatullin and Attorney at law Janja Končan. We also invite you to read on our website the key changes introduced by the latest amendment to the ZDR-1, including important changes to ordinary termination of an employment contract for reasons of misconduct.