The peculiarity of this tort is that the damage is caused by the performance of the employee’s duties (at
the workplace or during professional activity) or on the road (on the company’s vehicle or on behalf of the
employer). The fact of infliction of moral damage, based on the established judicial practice, is considered
proven if there is a conclusion of the medical and social expert commission (MSEC) on the damage to health
during employment. Thus, the Constitutional Court of Ukraine in paragraph 4.1 of its Decision (Decision of
the Constitutional Court of Ukraine No. 1-rp/2004, 2004) stated that health injuries caused to the victim
during the performance of work duties cause to him (her) moral and physical suffering regardless of the
degree of loss of professional capacity. The loss of working capacity, which is established by the conclusion
of the MSEK, is in itself indicative of moral harm, because the health of the victim has deteriorated.
2) the illegality of the employer’s actions, which occurs in the event of failure to fulfill his (her) obligations
to ensure proper, safe and healthy working conditions, or in their violation.
Article 43 of the Constitution of Ukraine (Law of Ukraine No. 254K/96-VR, 1996) stipulates that everyone
has the right to proper, safe and healthy working conditions. This right is realized through labor protection
as a system of legal, socio-economic, organizational, technical, hygienic and curative measures and means
aimed at preserving life, health and working capacity of a person in the process of work.
According to Art. 88 of the Labor Code of Ukraine (Law of Ukraine No. 322-VIII, 1971), healthy and safe
working conditions are compliance with safety rules and regulations, necessary lighting, heating,
ventilation, elimination of harmful effects of noise, radiation, vibration and other factors that negatively
affect the health of workers, etc.
Proper working conditions in the technical sense should be considered operating efficiency of machines,
lathes and devices; proper quality of materials and tools necessary for the performance of work and their
timely submission; well- timed supply of production with electricity, gas and other energy sources; in-time
provision of technical documentation. Healthy and safe working conditions are compliance with safety rules
and regulations, necessary lighting, heating, ventilation, elimination of harmful effects of noise, radiation,
vibration and other factors that negatively affect the health of workers, etc.
According to the rules of Art. 153 of the Labor Code of Ukraine (Law of Ukraine No. 322-VIII, 1971), the
employer is obliged to provide healthy and harmless working conditions, implement modern safety
equipment and hygienic conditions preventing industrial injuries and the occupational diseases.
Consequently, each employee has the right to a workplace meeting the requirements of labor protection,
as well as guarantees and compensations established by labor legislation. In addition, the employer is
obliged to ensure safety of employees during the operation of buildings, structures, equipment,
implementation of technological processes, as well as tools, raw materials and supplies used in production;
to provide means of collective and individual protection preventing and reducing the negative impact of
dangerous production factors on the employee; ensure proper sanitary and living conditions.
If the owner does not comply with these legal requirements, then, accordingly, he (she) violates the
employee’s right to proper, safe and healthy working conditions, which may lead to damage to the health
of the latter, including as a result of an accident at work or an occupational disease. Consequently, such
actions by the employee may be grounds for holding him (her) liable, including compensation for moral
damages.
3) causal link between wrongful acts (omission) by the employer and the infliction of moral damage on
the employee. A wrongful act on the part of the employer – failure to provide the employee with proper,
safe and healthy working conditions, or their violation – should result in moral damage to the latter as
a result of an accident at work or an occupational disease, i.e. lead to moral suffering, loss of normal
life ties or the need make additional efforts to organize his (her) life.