In the context of the employment relationship, the employer is bound by a certain number of obligations towards his employees, particularly with regard to the protection of the employee’s personality rights, his/her health and the fight against sexual harassment and mobbing. If they do not respect these obligations, they risk incurring liability.
Health and safety
The employer is the guarantor of the health and safety of his/her employees in the workplace. The employer has an obligation to take measures to prevent work-related accidents.
In certain circumstances, the employer will have to draw up a guideline or a company regulation concerning the safety rules to be respected within the company. The employer must ensure that these rules are followed.
The employer is obliged to protect his employees, sometimes against themselves. In particular, the employer is obliged to ensure that the employees are fit to work. When this is not the case, for example because the employee is ill, under the influence of alcohol or unable to work because of a fast imposed by his religion, the employer must react. Otherwise, the employer may be held liable in the event of an accident.
The purpose of holidays is to allow the employee to rest. The employer must ensure that the employee takes his/her holiday during the current year and that he does not accumulate unused vacation time over the years. If the employee does not take his/her holiday, the employer must react and take action. The health of the employee is at stake.
Despite the often relaxed atmosphere, the staff party is a professional event. The employer cannot be released from his/her obligation to protect the health of his employees. For example, the employer must ensure that no accidents occur due to alcohol consumption and that employees do not indulge in indecent behavior, such as putting their hands on a colleague's backside or dancing naked on the table.
Mobbing, Sexual Harassment and Labor Disputes
The employer is required to take all appropriate and reasonable measures to prevent and terminate situations of mobbing, sexual harassment, cyberstalking and labor disputes.
In particular, the employer must issue an anti-harassment policy, provide for a procedure to be followed and impose sanctions against the perpetrator of harassment. He/she also has a duty to assist his/her employees in the event of labor disputes. Failure to do so may result in liability, for an employee’s inability to work or dismissal for example.
In case of conflicts or particularly serious acts of harassment, the damage to the employee's personality may be such that it may justify satisfaction for the injury of personality rights.
Burnout is a severe state of overwork which can have multiple causes within the company. It can be due to an excess of overtime, to a conflict situation at work or to the non-respect of legal work and rest times, especially in the context of telecommuting. The employer cannot let the situation escalate until the employee ends up in burnout.
Laptop, smartphone or company car: the company sometimes lends expensive equipment to its employees. In case of loss, theft or damage, the employer is responsible for the costs of repairing or replacing the item in question, unless the employee is responsible for the situation.
Discrimination in the workplace
The employer must, in principle, respect the equal treatment of his/her employees in the workplace. However, situations of discrimination in the workplace are relatively common and varied. The employer risks having to pay compensation to his employee, particularly in the case of discrimination in hiring, salary discrimination or wrongful termination.
Between the duty of truthfulness and the obligation of benevolence towards the employee, the drafting of the work certificate by the employer is sometimes a headache. The employer may be liable to the employee if the certificate is unnecessarily disparaging or to the new employer if it is falsely complimentary.
During the employment relationship, the employer is likely to collect a good deal of personal information on the employee, particularly on his inability to work, his absences or even his family situation.
Faced with a request from a potential employer, the employer is obliged to provide information on his former employee. However, he/she may not pass on personal data beyond what is necessary, at the risk of incurring liability.
The purpose of the job interview is to allow the employer to get to know the candidate and to ask any useful questions. However, the employer may not ask questions that infringe on the candidate's private sphere and that are not related to the position being considered.
Whether it is to combat theft in the workplace or the misuse of the Internet during working hours, employers are often tempted to set up surveillance of their employees. However, such a surveillance system can be detrimental to the health of employees who may feel pressured or spied upon. If the employer does not respect specific procedures and conditions, he risks incurring liability. In particular, the employer must put in place monitoring regulations in accordance with the requirements of the Federal Data Protection Commissioner.
An employer decides to transfer his company to a buyer. The employees are concerned because their employer has not yet paid them their salary or overtime. They also fear that the acquiring employer will not be able to afford to pay their salaries or will suddenly decide to lower their salaries.
This is a delicate situation. Which company is responsible for the employees' claims? Can the employees turn against their former employer if the new company does not fulfill its obligations?