Everything about liability for (un)safety in the workplace

In the Netherlands, employers have a duty of care (zorgplicht). That is why the employer is also obliged to look after the safety and health of their employees. The duty of care also presumes that the employer takes measures to prevent an employee from being injured or suffering damage, that they give instructions and that they prevent unsafe situations. Of course, the employer does not have to do this personally, and much of it can be delegated, for example to a manager or to a prevention officer. If things do go wrong, however, the employer bears final responsibility. This page describes the situation in the Netherlands.

Liability of the employer for accidents involving employees

On the basis of the duty of care, there is a presumption that the employer is liable for the damage an employee has suffered, for example because they fell off a ladder or tripped over a rucksack that was lying in the middle of the corridor. However, this also includes occupational diseases, such as an employee who becomes ill from inhaling asbestos fibres.

Special division of the burden of proof

First of all, the employee must prove that the damage occurred while carrying out their work. If it happened neatly during working hours, that will not be so difficult to prove. Moreover, judges often rule in favour of the employee. For example, an accident during a break or during a team-building activity, or even an accident during a visit to the accountant after working hours at the employer's request, also counts as happening while carrying out the work.

Once the employee has proven that the accident took place while carrying out the work, the full burden of proof shifts to the employer. The employer must now prove that they are not liable at all. Can they not do so? Then they are liable. To avoid liability, the employer must prove that they took all the necessary measures against dangers they should have been aware of, or that the damage would also have occurred if they had taken these measures. Here too, judges are often critical: if an employer had taken all the measures, the accident could not have happened after all, and the judge would not have had to rule.

It does leave room to avoid liability if, for example, an employee is under the influence of alcohol or drugs, but of course only on condition that the employer is not at fault. For example, the employer really does have to take action if an employee has an alcohol addiction. In the case of intent or deliberate recklessness, the employer is not liable in any event. An employee who deliberately jumps off a building, for a bet or to take their own life, cannot make the employer pay for it.

Liability for an accident involving a self-employed person

The situation of the self-employed person without staff (zzp'er) is especially particular. Strictly speaking, a zzp'er is a self-employed person without employees. So a self-employed person and not an employee. In many cases, the employer is also liable when they hire such a zzp'er. The condition, however, is that the work takes place at the client's premises and that the zzp'er also depends on the client for their safety. This concerns the situation in which a zzp'er effectively works alongside the staff and in which it is only logical that they enjoy the same protection.

Liability for accidents involving comparable persons

In addition to employees and zzp'ers, there are sometimes other people at the company who work for the employer. Think of interns, pupils, temporary agency workers and so on. The fact that they do not have an employment contract does not mean that they do not enjoy the same protection as employees. Here, the employer or hirer is liable to the same extent as for their own employees.

Liability of the employer for accidents caused by employees

Employees can not only become the victim of an accident at work, they can also cause such an accident themselves. In doing so, they may injure their colleagues, or visitors or passers-by. Think, for example, of an employee who lets their hammer swing, after which it drops from the third floor straight onto the head of a passer-by. One skull fracture later, the question arises of who is liable.

Here too, the employer is the one who takes the blame. The employer is responsible for the conduct of their employees and is liable if things go wrong. The condition, however, is that there is a connection between the damage and the employee's task. The reasoning is that the employer had authority over the conduct and could have exercised control.

When the injured party is also the client, it even goes so far that the employer can be liable when the employee causes the damage intentionally. Where there is intent or deliberate recklessness, the employer can recover the damage from the employee. So first they have to pay the damage of their client, and then they can hold their own employee liable. The employer can protect themselves against this problem by including a so-called exemption clause (exoneratiebeding) in the agreement with the client. They then agree together that the employer is not liable for intent or deliberate recklessness on the part of their employees. In that respect, the client must continue to respect that agreement, even after an accident.

Liability for socially unsafe work

The liability rules above do not only relate to the risk of physical damage. Working conditions can also be socially unsafe. For example, there may be discrimination, bullying or sexual harassment in the workplace. It is important that an employer realises that they play an important role in this. After all, the employer can intervene in various ways. Think of:

• Independent conflict mediation
• Punishing bullies and guiding them better to prevent bullying behaviour
• Transferring an employee to another department
• Developing awareness campaigns
• Setting up change programmes to change the company culture

When it is not possible to reach a solution internally, or if the employer does not have a complaints procedure, the Netherlands Labour Authority (Nederlandse Arbeidsinspectie, formerly Inspectie SZW) can be called in. The bullied employee can hold not only the bully but also the employer liable.

Liability for coronavirus infection in the workplace

It is mainly a theoretical exercise, because in the end it is very difficult to prove that someone caught an infection at work, but in principle an employer can be liable for coronavirus infections in the workplace.

With coronavirus infections, too, the employer must prove that they met their duty of care and took adequate measures. During the coronavirus pandemic, the government's general recommendations played an important role here, but every company had to investigate the risks and take appropriate measures. During that period, employers could take measures such as the following:

• Encourage working from home (note: the employer must also pay attention to a safe home workplace)
• Provide sufficient ventilation
• Spread working hours
• Refuse sick employees access to the workplace
• Provide hand sanitiser
• Organise walking routes
• Encourage the use of alternative means of transport (e.g. a company bicycle instead of public transport)
• Guarantee a 1.5-metre working environment
• Install sneeze screens
• And so on

If an employer does not take the right action, an employee can file a report with the Netherlands Labour Authority.

High compensation possible

The employer quickly has to pay compensation. Such compensation can run high. If an employee receives benefits under the Work and Income (Capacity for Work) Act (WIA), for example, the implementing body can recover the amounts paid from the employer. That is also the case, for example, for the costs reimbursed by the health insurer. In addition, the employer of course has to pay for all other aspects of the material damage and the non-material damage, ranging from loss of income to the loss of the opportunity to use the gym membership.

Good insurance is very important

The employer is quickly liable and then faces sky-high costs. Although an employer is not obliged to take out accident insurance, it is really advisable. Such accident insurance is what we call fixed-sum insurance (sommenverzekering). Accident insurance pays a fixed amount when there has been an accident. This fixed amount is completely separate from the question of who is liable and whether anyone is, and it can also be lower than the actual damage. Also bear in mind that the policy often contains exclusions. For example, accident insurance will not compensate the damage if alcohol or drugs are involved.

Accident insurance will not always be enough to really cover all the damage. That is why it is more interesting to choose business liability insurance. Within the sum insured and the policy conditions, business liability insurance can also cover damage that accident insurance does not cover, for example the costs of informal care (mantelzorg). Of course, bear in mind that this is liability insurance. That means that employer's liability is covered, but not your own damage to, for example, the inventory or the company bicycle.

Finally, legal expenses insurance remains recommended. Large amounts are often involved, and that quite often results in legal proceedings. Legal expenses insurance provides assistance from the right lawyer, at the moment the employer needs it.