Duty of care
Notion
When performing his/her work, the employee must look out for the interests of his employer. He/she must perform his/her work with care and comply with the directives and instructions received. The employee must not engage in any behavior that may cause harm to the employer. This duty of care is expressed in various ways in labor law.
Executives
This obligation applies to all employees, from those in senior management positions to trainees. Because of their important functions within the company, executives are bound by a heightened duty of care.
Their conduct will be judged more rigorously, particularly in the event of dismissal, if they criticize the employer in the presence of colleagues or if they have an intimate relationship with a subordinate. Executives may also be bound by a more extensive duty of confidentiality, particularly with respect to their salary.
Inability to work
Sometimes an employee becomes ill or suffers an accident that prevents him or her from working. In such a case, the employer has an overriding interest in knowing about it as soon as possible. The employee's duty of care requires him to inform his employer without delay and to provide a medical certificate.
This is also the case if the employee becomes ill while on holidays. Can the employee send a medical certificate in Italian, Spanish, Thai or Arabic to the employer?
The employee's duty of care means that he or she must do everything possible to get well as soon as possible. Activities that are incompatible with the employee's medical condition are prohibited.
Theft
If an employee steals from the workplace, it’s a serious breach of the duty of care. This is because the employee is seriously damaging the interests and trust of the employer, even if he or she steals something of little value. The penalties can be severe.
Staff party
The staff party is an opportunity to get to know colleagues and superiors as well as the boss in a more relaxed atmosphere. However, the employee must not forget that he or she is still in a professional context. If they abuse alcohol and indulge in inappropriate behavior, they are violating their duty of care.
Social networks
On social networks, employees feel they can post certain things with impunity, without the employer finding out. Criticism or even insults against the employer or colleagues, disclosure of business secrets or customer lists: employees' posts can cost the employer dearly. The employer must react quickly to this breach of duty of care.
The duty of care is even greater if the employee works in a company with an ideal, political, associative or spiritual purpose. How can and should the employer react when the employee publishes ideas that are contrary to the ideals advocated by the company?
Recording in the workplace
Whether it is the desire to catch a supervisor red-handed, record a confidential meeting or take a picture of a new prototype to sell to a competitor, employees sometimes record in the workplace. This is a serious breach of contractual obligations. Such a violation may, under certain conditions, be contrary to the Unfair Competition Act and constitute a criminal offense.
Telecommuting
Reducing stress and travel, telecommuting is often welcomed by the employee. The temptation is great for the employee to take advantage of it to look after their children or to spend some quality time. Out of sight does not necessarily mean out of mind. The employee is still bound by his obligations, even if he works from home.
Religious freedom
Wearing a veil, fasting, absence for prayers... In principle, the employee enjoys religious freedom in the workplace. However, when religious freedom conflicts with the employer's interests, the situation is delicate. The employee will sometimes have to deviate from his religious principles because of his duty of care.
Release from the duty to work
When dismissing an employee, the employer may have an interest in removing him or her from the workplace during the leave period. The mere fact that the employee no longer has to report to work does not mean that he or she is released from all obligations to the employer, even if he or she is not bound by a non-competition clause. In particular, the employee may not engage in any activity that he/she wishes, compete with the employer or attempt to poach the employer's customers.
Gifts from Customers and Suppliers
At Christmas time, an employee may receive a gift from a customer or supplier. If an employee accepts a gift of a certain amount without informing the employer, the employee's interests may be harmed and the employer's duty of care may be violated.
Love at work
Work encourages dating, whether over the coffee machine or in meetings. Employers do not always look kindly on these workplace romances.
The employee's duty of care is limited by his or her right to privacy. It is sometimes difficult to distinguish between the two!
Is the termination with immediate effect of a secretary who sleeps with her boss' husband justified? What about the preventive dismissal of an employee who dates an employee of a competing company?
Health and Safety
Employers are required to take all reasonable steps to ensure the safety and health of their employees in the workplace. The duty of care requires employees to follow the employer's instructions.
Penalties
When an employee breaches the duty of care, the financial consequences for the employer can be particularly severe. The employee is exposed to sanctions that will depend on the seriousness of his behavior. They can range from a simple warning to ordinary dismissal. In case of serious or repeated violation of his obligations, the employee’s contract may be terminated with immediate effect.