What’s new in Europe?

• Italy
• France
• Netherlands

Italy

The Use of Visual Display Units

New safety measures regarding the correct use of visual display units in the workplace have been implemented in Italy under the Legislative Decree no. 81 of 9 April 2008 (the “Decree”).

Pursuant to the new regulation, an employer is required to evaluate (as part of the normal duty to protect the health and safety of employees in the workplace) those specific risks involving employees’ eyesight, specific problems related to posture, eyestrain and mental fatigue, and specific risks arising from the ergonomic conditions of the workplace. Depending on the specific risks arising from the evaluation, the employer is required to adopt and implement suitable measures in order to prevent any potential detrimental effect on employees’ health and safety.

Generally speaking (in addition to the specific evaluations), the employer is required to plan periodic reviews every two to five years, depending on the age of employees and the instructions of a competent doctor; and must purchase, at his own expense, any special device in order to prevent risks to employees’ eyesight. In addition, all employees using visual display units are entitled to a paid break of no less than 15 minutes for every 120 minutes of activity. There may also be ameliorative provisions within the National Collective Agreement. Employees found to have problems with their sight are entitled to ask for assignment to tasks and duties consistent with their abilities.

Should the employer be in default of the provisions set forth by the Decree, the following sanctions would be applied:

• Where an employer does not allow employees to have sufficient breaks or does not ensure adequate medical checks have been carried out, he may face imprisonment for between 3 and 6 months or a fine between Euro 2,000 and Euro 10,000and
• Where an employer does not provide adequate instructions to employees regarding their duties and responsibilities or does not arrange for suitable training courses, he may face imprisonment between 2 and 4 months, or a fine between Euro 1,000 and Euro 4,500

For further information contact: Serena Fantinelli


France

National Inter-Industry Agreement on Stress at Work

On 2 July 2008, at the end of a fourth negotiation session, French labour and employer organisations reached an agreement on stress at work. The agreement, entitled “National Inter-Industry Agreement on Stress at Work” was already signed by MEDEF, the employer confederation, and by CFTC and CFDT, which are trade unions representing employees.

Whether at international, European or national level, stress at work is considered a concern for employers and workers. Thus, in response to a need to take action regarding this issue, European representatives of employers and employees had already signed (on 8 October 2004) an agreement on stress at work under Article 138 of the EC Treaty.

The agreement of 2 July 2008 aims at implementing the European agreement into French law and takes into account changes occurring in society in this respect.

Firstly, the agreement attempts to define the concept of stress, as something which can be observed in the event of imbalance between the way in which an individual perceives the constraints imposed by his environment, and the way in which the same individual perceives the resources available to him in order to cope with those constraints.

The agreement then provides that where a stress issue is identified, steps must be taken in order to prevent, eliminate or minimise such stress. The steps taken to that end by the employer (with the support of the institutions representing employees, or with the support of the employees themselves) may be collective, individual or concurrent. In particular, there are steps in place aimed at training companies in stress management and in informing and consulting the workers and/or their representatives in this area. When a business does not have the expertise required to deal with work-related stress, it may call on an external expert, without encroaching on the mandate and powers of the health, safety and working conditions committee.

The representatives of labour and management emphasised in the agreement “the pivotal role of the occupational physician.” The agreement underlines the fact that the occupational physician is bound to professional secrecy, which guarantees each employee’s right to have his anonymity protected.

The agreement is in line with both European directives on health and safety at work and Articles L. 4121-1 to 5 of the French Labour Code, under which employers are required to take all necessary steps in order to ensure the safety and protect the physical and mental health of employees. This obligation also covers stress at work issues, insofar as they create a risk to health or safety. The agreement makes it possible to raise the awareness and improve the understanding of stress at work by employers, employees and their representatives, and integrate such understanding into corporate risk management policies.

Indeed, while there is in France no specific regulation concerning the prevention of stress at work, it should be noted that in practice and according to Articles L. 4121-1 to 5 of the French Labour Code, the employer is required to take all necessary steps in order to ensure and protect the physical and mental health, as well as the safety, of employees. This general obligation relies on a comprehensive approach to the prevention of professional risks.

Beyond these general provisions, the prevention of stress at work may also rely on specific regulations aimed at the prevention of certain risks likely to constitute sources of stress. This covers in particular: the prevention of risks due to noise (French Labour Code, Art. R. 4431-1 et seq.); the prevention of risks related to work on a computer screen (French Labour Code, Art. R. 4542-1 et seq.); and provisions concerning labour relations (the non-discrimination principle, non-discrimination in relation to trade unions, and prohibition of and the obligation to prevent moral harassment).

For further information contact: Vincent Delage


Netherlands

Drug-Free Workplace Policy

The Dutch Supreme Court has recently laid down an interesting decision concerning an employer’s drug-free workplace policy.

A waitress, employed by a hotel on Aruba Island (a Dutch territory) underwent a drug test as prescribed by her employer, and tested positive for cocaine use. There was provision for drug and alcohol testing under the employer’s drug-free workplace policy. Confronted with the result of the test, the employee was asked to take part in a rehabilitation programme, but she refused to do so. The employer then dismissed the employee on “urgent cause”. The local (sub-district) court and the appeal court approved the employer’s dismissal.

The Supreme Court however then went on to consider the case, and held that the drug-free workplace policy formed part of the employment contract. The policy contained a warning that a positive test on alcohol or drugs could lead to a dismissal; therefore the employee must have understood that a dismissal could follow from a positive test. For this reason, the Supreme Court said that the dismissal could follow, regardless of whether drugs were taken in the home or at the workplace; it was found to be of no importance whether or not the use of cocaine could lead to a negative effect on the work of the employee.

It is to be noted that cocaine can be traced in the body up to 72 hours afters use. This fact is commonly known, and will not provide an excuse for the employee. The employer’s drug-free workplace policy therefore means that the employee should know that even in the home, cocaine cannot be used without the risk of a positive test. The parties did not deny or fight the legitimate goal of the drug policy, and it was confirmed that the employer has an absolute interest in maintaining its reputation by correct behaviour and attitude from employees, without any negative influence from use of drugs. Likewise, it was accepted that sanctions as a consequence of a positive test will lead to a proper enforcement of the policy.

In cases such as this, the employer’s interest is of greater importance in comparison with employee’s interest. It was found that the use of drugs in the home is of much less importance than the employer’s interest in its good reputation and serving its clients in the best possible way. Therefore a strong drug policy as part of the employment agreement can be fully justified, and must be communicated or agreed with employees.

Discussions will always concentrate on the fine balance of freedom in the home versus the responsibility towards the employer. Freedom in the home can be justifiably limited if the employers interest is at stake.

For further information contact: Jos W.M. Pothof