2. Content of the right of the healthcare provider to decent, safe and healthy working conditions

The right of workers, including healthcare workers, to safe and healthy working conditions is guaranteed by international and national legislation. This section includes the analysis of the content of the positive duty of the state and employer to create safe and healthy working conditions for employees in all work-related aspects.

Violence experienced by health care providers is not just the problem of their own. This is also a concern of the State responsible for the organization of activity at health care institutions, as substantiated by law. In the member states of the European Union, the right of all workers to work in a safe and healthy environment is in effect[11]. Article 31 of the EU Charter of Fundamental Rights determines the rights of the individual to decent and righteous working conditions, and defines that every worker has the right to working conditions, which would respect his or her health, safety and dignity. In the Council Directive No.89/391 / EEC, on the introduction of measures encouraging improvements in the safety and health of workers at work, the obligations of the employer, such as taking the measures necessary to protect the safety and health of workers, including prevention of professional risk-taking, information and vocational training, stringent organization and measures, are set.

The Directive emphasizes the preventive actions taken by the employer, imposing an obligation on the employer to ensure that workers do not suffer any harm, violence included, at work. All member states of the European Union have incorporated this Directive in their national legislation, and some of them have made special recommendations on preventing violence at work. Subject to the provisions of the Directive related to the prevention or reduction of violence at work, and in consultation with workers and their representatives, employers must:

  • work on prevention of violence at work,
  • assess the risks of violence at work, and
  • take appropriate action to prevent damage.

The guidance on the application of risk assessment and prevention of work-related stress can be found in the Information Leaflet No.22 of the European Agency for Safety and Health at Work[12]; it can also be used to prevent work-related violence. The recommendation level provides preventive measures to prevent violence, which can be implemented at two levels.

At the first level, the main objective is to prevent or at least reduce the incidence of acts of violence.

For example, this can be done by creating a proper working environment (reviewing of physical security measures, such as entrance locks, screens, proper lighting, reception, emergency exits, video surveillance system installation, alarm system, coded doors; removal or downsizing of no-exit areas and objects that can be used for injury; arrangement of better seating and interior design; providing regular information on delays, etc.), by effective work organization (regular collection of cash and valuables, use of cash alternatives; queuing and adjustment; sufficient staffing; working hours tailored to customer needs; visitor identity verification; where appropriate, visitors should be accompanied by staff; avoiding working in solitude and ensuring communication with co-workers in an isolated unit; better visitor reception and public information, etc.)

The second level involves assisting the victim, when the violence has already occurred. The purpose of this assistance is to reduce the harmful effects of the incident and to prevent any feelings of guilt that may be caused to the victim after the act of aggression. A study on good practice and prevention of risks to health and safety at work in the health care sector[13] has highlighted several factors that influence patients' manifestations of violence against healthcare providers.

This includes the provocative behaviour of the employees themselves, as well as systemic workplace and organizational problems. While the purpose of violence prevention prior to an act of violence is to prevent violence by identifying hazards, assessing risks, and taking preventive action where appropriate, the second level basically focuses on providing assistance to the victims of violence. 

It should be noted that these findings of the studies initiated by the European Agency for Safety and Health at Work and other EU institutions are for guidance only. Consequently, the latter do not have the character of an obligation inherent in a rule of law[14]. For this reason, it is necessary to determine how and to what extent the statutory regulatory obligation on the State and the employer[15] to create safe and healthy working conditions for workers in all aspects of work is regulated. 

Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania provides, ‘Every individual has the right to choose a job or a business freely and to have decent, safe and healthy working conditions, to receive fair payment for work and get social security in the event of unemployment.’

The constitutional right to decent, safe and healthy working conditions means, inter alia, that every worker has the right to working conditions, which do not adversely affect his or her life, health, safety or hygiene. Suitable working conditions include working environment, nature of work, working and rest time, working equipment, etc.[16]. At the same time, this constitutional right implies the employer's duty to ensure the adequacy, safety and health of the working conditions. The human right, as enshrined in the Constitution, inter alia Paragraph 1 of Article 48 thereof, does not deny the duty of every employee to observe the requirements of safety at work. It needs to be noted that the provision of Paragraph 1 of Article 48 of the Constitution, according to which every person has the right to have adequate, safe and healthy working conditions, implies the duty of the State to establish legal regulation under which legal preconditions for exercising this right would be created. In so doing, the State must also establish effective mechanisms for monitoring the implementation of this constitutional right.

One of the principles of the legal regulation of labour relations, as referred to in Paragraph 1 of Article 2 of the Labour Code, is the creation of safe and healthy working conditions, which are detailed in Articles 158 and 159 of the Labour Code and the Law on Safety and Health at Work. The regulation of occupational safety and health inevitably involves a number of technical issues that cannot be dealt with in detail by law, and therefore, secondary legislation is of primary importance. In the context of the content in question, reference should be made to the General Provisions for Occupational Risk Assessment [17]. The occupational risk assessment provisions detail the purpose of the occupational risk assessment, i.e. investigate current or potential occupational risks at work and provide preventive measures to protect or minimize occupational risks for workers. Workers' rights may be violated if the employer fails to fulfil his duty to ensure normal working conditions and if the workers have to work in unsafe, substandard working conditions. The jurisprudence of the Court of Cassation states, that "safe and healthy working conditions must be in place for every worker, regardless of the type of business, type of contract, place of work, work environment, nature of work, subject to statutory non-discrimination clauses.[18] Failure by the employer to fulfil his / her legal obligation to provide the worker with a safe environment at his / her place of employment shall give rise to the liability of the employer. In this respect, the European Court of Justice, in one of its cases, interprets the safety and health of workers as expanding. According to the Court, in Article 118A of the Treaty Establishing the European Economic Community, there is a requirement that the terms "working environment", "safety" and "health" shall not be construed narrowly and shall include any physical or other factors, which may affect the worker’s health and safety in the working environment. The interpretation of the terms "safety" and "health" may be based on the preamble of the World Health Organization Constitution, which defines health as physical, spiritual and social well-being, and not merely the absence of disease.[19] This approach is also prevalent in national case-law, which reveals that the employer's obligation to ensure safe working conditions arises even when the causes of the accident are the result of violent criminal acts by a third party.

Courts note[20] that the employer must ensure the employee has the right to a safe working environment not only for the direct performance of their duties, but also in another environment in which the employee is on behalf of, or in the interests of, the employer. The on-site worker must be safe from external aggression. Unless the employer-approved safety and health instructions contain any safeguards against violence, these deficiencies in the employer's safety performance are a sufficient basis for detecting unlawful actions (omissions) by the employer, especially, when the employer is a financially viable company that can provide a safe environment. If the inaction and lack of care on the part of the employer have facilitated the commission of the offense against the employee, this is the basis for establishing a causal link between the inaction of the employer and the resulting damage - injury or even death of the employee.

There are jobs in which the working conditions, by their very nature, can be harmful and unsafe, but in this case, according to the case law, there is a distinction between hazardous work and work where there are deviations from normal working conditions. The first option includes cases where, under the Government Order[21], a list of hazardous jobs is established that identifies occupations with a higher occupational risk, where the likelihood of injury or any other damage to employee health due to exposure to a hazardous and / or dangerous work environment factor(s) is higher. It should be noted that most types of work that are classified as hazardous by law are those involving hazardous, explosive materials, electricity, underwater, altitude, etc. With regard to the category of health care professionals, hazardous work includes only treatment and care of the mentally ill and those suffering from alcoholic, toxicological psychosis, and the provision of health care to patients with dangerous or particularly dangerous communicable diseases, using epidemic prophylaxis with dangerous or particularly dangerous communicable diseases. The number of accidents at work recorded affects the classification of a job as a hazardous job. Regarding the issue of unsafe environment for health care providers, which may consist of inappropriate, dangerous behaviour of patients, it should be noted that adverse events related to patient behaviour have only been added to the list of adverse events since January 1st, 2019,  after the approval by the Minister of Health[22]. By that time, events of this nature had remained outside the scope of the state monitoring, which was likely to have influenced the drawing up of the list of dangerous jobs. Moreover, the Court of Cassation has emphasized that the mere fact that an employee is engaged in work classified by the Government decree as hazardous, does not mean in itself that there are deviations from normal working conditions. The significance of the classification of certain jobs as hazardous must be interpreted by systematic analysis of the provisions of the Law on Safety and Health at Work and the corresponding Articles of the Labour Code; the hazardous nature of work means that certain types of work are carried out under conditions which pose specific factors affecting the safety and health of workers; the employer, taking into account the specific nature of the work concerned, and in accordance with the principles of safety and health of workers, establishes additional measures to ensure normal working conditions. It is only after it is identified that certain specificities of the work do not prevent adverse effects on workers' health and that there is a deviation from normal working conditions, that an obligation on the employer to pay higher wages than working under normal working conditions emerges[23].

In conclusion, it is important to ensure that personal health care providers were supplied with appropriate means and measures, got necessary training and would work in a positive psychosocial environment.

Review questions:

  1. What is the legal content of the principle of 'safe and healthy working conditions'?
  2. What are the recommended measures to ensure that the worker has the right to decent and fair working conditions?
  3. In what cases can the employer be held legally liable for failure to comply with the positive obligation to ensure safe and healthy working conditions for the employee?