DUTY OF CARE
|DUTY OF CARE
As the counterpart to the employee's duty of loyalty, the duty of care likewise represents an obligation (in this case on the employer) to protect, have regard for and safeguard interests in order to avoid damage to the legally protected interests of the contractual partner (in this case the employee).
In particular, it signifies that the employer must organize the work and arrange premises and equipment in such a way that the employee's life and health are protected as far as the nature of the work allows. It can be assumed, in principle, that employers who observe all the public-law provisions on employee protection in this respect (see employee protection: safety and health protection at work) are thereby also fulfilling their private-law duty of care regarding employees. However, where legislation on employee protection has become outdated there are still grounds for taking legal action against an employer on the basis of the duty of care, since the latter requires employers, as far as is possible and reasonable, to take advantage of the latest advances in technology for the puposes of health and safety at work.
According to legal scholars and case-law, however, the duty of care is to be interpreted more broadly than this, as also encompassing all other legally protected interests of the employee. This means, in particular, that the interests of the employee concerned must also be taken into account by employers when exercising their discretionary rights. For example, the courts hold that, in regard to rights of revocation (including the right to cancel assurance of an occupational pension), the duty of care is in itself sufficient to prohibit the employer from limiting the corresponding employee rights any more than is absolutely necessary in the light of the company's needs and taking employees' interests into account.