The Danish Working Environment Authority has issued guidance clarifying an employer’s obligation to prevent and address psychological issues in the workplace. Pursuant to the Working Environment Act, an employer has an obligation to ensure that work is planned, organised, and performed in a way which ensures a safe and healthy work environment, this definition covers both the physical and psychological work environment. Employers have an obligation to identify and assess risks of psychological harm, for example through a workplace assessment (APV), and should develop action plans for issues that cannot be resolved immediately.
The guidance emphasises that employers should pay particular attention to issues such as bullying, sexual harassment, threats, violence, excessive workload, and lack of support. If problems arise, companies must have clear procedures in place for handling them — including how employees can report issues and how management follows up on such issues.
Recent cases indicate a trend toward stricter employer liability in cases involving psychological work injuries. The trend highlights that the courts are increasingly holding employers accountable for failing to respond to issues of serious psychological harm in the work environment, including harassment, bullying, and sexual misconduct. This development is in parallel with a rising number of reported psychological work injuries.
The cases also highlight that when assessing whether the Working Environment Act has been violated, the courts will focus on whether or not the employer has taken sufficient steps to prevent and manage abusive conduct.
In this case, messages of an explicit sexual nature were written about a female painter in elevators and common areas. The Western High Court found that the sexually offensive messages exceeded what an employee should be expected to tolerate in the workplace and that the painter had been subjected to sexual harassment during the course of her work.
The messages were so widespread and of such an offensive nature that the court held that the owners of the painting company, who were regularly present at the construction site and used the elevators, must have been aware of them.
The court also found that the employer had not taken sufficient effective measures to stop the harassment and had failed to fulfill the obligation to provide a harassment-free environment and to reasonably protect the employee from harassment.
As a result, the employee was entitled to compensation under the Equal Treatment Act. Furthermore, since the employer had failed to ensure a safe work environment where the employee was protected from psychological harm in accordance with the Working Environment Act the employer was found liable under general tort principles. The court also found a causal link between the harassment and the painter’s subsequent sick leave. She was therefore awarded DKK 57,704.22 for lost earnings and DKK 78,500 for pain and suffering, in addition to the compensation under the Equal Treatment Act.
This legal development underlines the need for companies to establish clear HR policies on the psychological work environment and implement contingency plans for handling psychological strain. A written policy can clarify expectations and procedures, provide reassurance to employees, and serve as documentation of the employer’s efforts to provide a safe work environment in case of a work injury claim.
In addition, the Danish Working Environment Authority recommends that companies develop clear HR policies on the psychological work environment and establish a response plan for dealing with psychological strain.
An active effort in this area can not only prevent psychological harm but also improve the overall work environment and reduce the risk of liability under the Equal Treatment Act, the Anti-Discrimination Act, the Working Environment Act, and general tort law.
Mette Klingsten Law Firm advises clients on the prevention and management of psychological strain in the workplace. Please get in contact for further information and advice.
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