The Hungarian legislation does not impose special rules with respect to labour safety regarding COVID-19. The reason for this is that general labour safety rules define the pertaining obligations of the employer in a way that the employer should monitor the possible labour safety risks at the workplace on a regular basis. Thus, the extent and means of safety measures shall always be applied according to the actual level of danger.
The above-mentioned risk assessment is considered to be an occupational safety activity, i.e. the employer is obliged to involve appropriate experts in the identification of hazards. In addition, the employer shall appoint a person from the employees who is responsible for labour safety at workplace. According to the information available to us, labour safety experts and employees are currently busy monitoring the increased level of risk because of COVID-19.
The general rule of the employer’s liability for the damages of the employee is the following: the employer shall be liable to provide compensation for damages to the employee caused in connection with the employment relationship. The employer shall only be relieved of such liability if it is able to prove that:
- the damage occurred in consequence of unforeseen circumstances beyond its control, and there had been no reasonable cause to take action for preventing or mitigating the damage; or
- the damage was caused solely by the unavoidable conduct of the aggrieved party (in the present case the employee).
The employer shall compensate the employee for all his/her losses in full. No compensation is required if the employer is able to prove that the occurrence of such loss could not have been anticipated.
We are of the view that if the employer reopens its premises and the employees working in the office get infected with COVID-19, it would not be possible for the employer to rely either on point a) or b) above to be exempted from liability. We would like to note that reopening shall also be done with caution and in cooperation with the landlord of the premises, as the unused premises may develop additional danger.
At the same time there are certain circumstances which can influence the liability. If the employer introduces strict measures to assure that no person infected enters the premises (for example introduces temperature measuring) and an employee gets infected due to contact with people outside of the workplace and / or due to the control introduced by the employer, then the affected employee is identified and sent to quarantine. The employee will have the burden of proof that in fact his/her infection was caused in connection with the employment relationship. In such a case we are of the view, although no actual practice exists, that the employer might be able to prove that the damage suffered by the employee was not caused in connection with the employment relationship.
Criminal liability under Hungarian criminal law may only arise with respect to natural persons falling under the scope of the Hungarian Criminal Code, therefore, as a rule, businesses cannot be held criminally liable for the offences described therein.
Although Act CIV of 2001 on Corporate Criminal Code sets out criminal measures which could be applied vis-á-vis legal persons, this Act is applicable only (1) in case of criminal offences committed intentionally, if (2) such conduct is aimed at obtaining or resulted in an advantage for the legal person. The Corporate Criminal Code may also be applicable if the legal person is used by the offender for the perpetration of the intentional criminal offence. As these prerequisites are not at all likely to be met with respect to any of the potential offences of the Criminal Code in connection with the COVID-19 situation, one may reasonably conclude that businesses may not be held accountable for exposure or risk of exposure to COVID-19.
In Hungary, civil liability may arise both on contractual and tortious basis.
Civil liability for breaching a contract is governed by the general provisions contained in Sections 6:142 and 6:143 of the Civil Code. On this ground, the person who causes damage to the other party by breaching the contract shall be liable for such damage and compensation shall be provided in the form of damages for the loss caused.
On the other hand, under Section 6:519 of the Civil Code, tortious liability for damages arises if a person wrongfully causes damage to another person. The tortfeasor is exempted from liability in case he/she proves that he/she took all measures which could have been reasonably expected in the given situation to be taken.
The contractual civil liability of the company arises in case either any of its employees or the management of the company – acting in this capacity – causes damage to its business partners with whom it has a contractual relationship. In such cases, the business partners may bring claims against the company for compensation for the damages they suffered due to exposure or risk of exposure to COVID-19.
With regard to the members of the public, who are considered to be third persons as no contractual relationship exists between them and the business, tortious liability arises on the part of the business. In light of the provisions set out in Paragraph 2 of Section 3:24 and in Section 6:540 of the Civil Code, the fact of whether it is the employee or the management itself who causes the damage to the third person is without prejudice to the person against whom the civil claim shall be submitted, as, in all cases, it is the civil liability of the business which arises due to the damage caused.
On the contrary, in case the damage is caused by an agent of the business acting in connection with his/her assignment, not only the legal person’s liability arises, but the business and the agent will be jointly and severally liable under the rules of tortious liability.