Article 5 of the Labour Contract Act is one sentence: the employer must give necessary consideration so that the employee can work while ensuring the safety of their life and body. It codified a doctrine the courts had built since the 1975 Self-Defence Forces Hachinohe case, in which the Supreme Court held that a duty to protect employees' safety arises from the employment relationship itself.
Its reach widened sharply with the Dentsu case in 2000. A young employee had taken his own life after months of extreme overtime, and the Supreme Court held the employer liable because his superiors knew of his long hours and declining health and did nothing to reduce his workload. The duty therefore covers mental as well as physical health, and it is breached by failing to act on what the employer knew or could have known. Courts have since applied it to excessive hours, harassment, failure to act on health check or stress check results, and returning an employee to full duties too soon after sick leave.
The duty sits alongside state workers' accident compensation, not in place of it. The compensation insurance pays for lost earnings and medical costs regardless of fault. A duty-of-care claim is a civil action against the employer, and can recover what the insurance does not, such as compensation for suffering and the full value of lost future earnings. The Dentsu case itself ended in a settlement reported at about 168 million yen. Directors can also be held personally liable.
What it means for a foreign employer
- Knowledge creates liability. Long logged hours, a doctor's note or a stress check interview request are things the employer is taken to know. Acting on them is the defence.
- Remote management is not an excuse. A regional manager in another time zone who drives a Japan team through late-night calls is creating the evidence.
- The duty can extend to assignees. Courts have applied it to whoever actually directs the work, so a group company directing a seconded employee can owe it too.
- It is a reputational risk too. The employers in overwork death cases are named in the Japanese press. A foreign employer is not insulated by being foreign.
Sources
- Labour Contract Act, Article 5.
- Supreme Court, Self-Defence Forces Hachinohe Vehicle Maintenance Plant case, 25 February 1975.
- Supreme Court, Dentsu case, 24 March 2000.
- Companies Act, Article 429.