Duty of Care in Europe
The concept of Duty of Care has gained increasing interest amongst businesses, multi-national organisations and governments involved in global operations. Duty of Care can be defined as the legal duty of an organisation to act towards others and the public with cautiousness, in order to avoid the risk of foreseeable physical and psychological injury and/or damage.
The protection of human rights is one of the EU’s overarching objectives and has acquired growing importance over the years. EU legislation has been the foundation of national laws regarding duty of care responsibilities, favouring the health and safety of employees through article 153 of the Treaty on the Functioning of the European Union.
In particular, the European OSH Framework Directive on safety and health at work (Directive 89/391 EEC), introduced 12th June 1989, sets the minimal requirements which every member state has to comply with when shaping its own national legislation regulating safety at work. In 2004, the European Commission issued a report, COM (2004) 62, which concluded that EU legislation had contributed to instilling a culture of prevention throughout the European Union as well as to rationalising and simplifying national legislative systems.
National legislations have further clarified this obligation. In particular:
UK: in the United Kingdom, the duty of care ‘may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly.’ (European Court of Human Rights, Judgment of 10th May 2001, T.P and K.M, The United Kingdom, para 45).
Italy: in Italy, occupational health and safety is regulated by the D.Igs 81/2008, or ‘Consolidated Law on Health and Safety at Work Act’. This legislative degree states the basic requirements for the prevention of occupational accidents. According to the law, the employer is accountable for the physical and psychological integrity of employees, and is therefore legally bound to ensure not only prevention of foreseeable risks, but also to implement security measures advised by specific experience and knowledge of the field.
France: in France, the French law LOI 2017-399, ‘Devoir de vigilance des entreprises donneuses d’ordre’, makes it compulsory for French companies to ‘establish and implement a diligence plan which should state the measures taken to identify and prevent the occurrence of human rights and environmental risks resulting from their activities, the activities of companies they control and the activities of sub-contractors and suppliers on whom they have a significant influence’.