An employee can also suffer physical or psychological injury at home while working. Think of neck and shoulder complaints caused by a poorly set up workstation, a fall over a cable or a burnout caused by persistent work pressure. The employer's duty of care does not automatically end as soon as the employee leaves the office. The employer can therefore be liable for injury that arises while working from home. However, not every accident in the home is an accident at work for which the employer has to pay compensation. This page describes the situation in the Netherlands.
When is the employer liable when you work from home?
For liability under Article 7:658 of the Dutch Civil Code (Burgerlijk Wetboek, BW), the employee must state and, if necessary, prove that they suffered damage while carrying out their work. This article is primarily about physical or psychological injury and its financial consequences. If the employee makes this plausible, the employer is liable, unless the employer shows that they fulfilled their duty of care or that the damage was largely the result of intent or deliberate recklessness on the part of the employee (Article 7:658(2) BW). This duty of care does not only apply in an office, a warehouse or on a building site. When the employer allows or requires an employee to work from home, the employer must also pay attention to the safety and health of that home workstation. The Working Conditions Act (Arbowet) and the rules for location-independent work also apply to working from home.
In addition to the two exceptions mentioned, an employer who is in principle liable can also escape liability by showing that their failure did not cause the damage. The employer is therefore not automatically liable for every health problem that arises during a period of working from home. Article 7:658 BW does not offer an absolute guarantee against accidents or illness. The employer must, however, be able to show which risks they investigated, which aids they offered and which concrete instructions they gave.
When is an injury at home work-related?
With an accident at the office, it is usually clear that the incident took place during work. At home, work and private life overlap more easily. The time and place of the accident are therefore important, but not decisive. Above all, you have to look at what the employee was doing and what connection that activity had with the work.
Examples of work-related injuries:
- A fall from a faulty office chair during screen work;
- Tripping over a cable from equipment provided by the employer;
- A cut while opening a business parcel;
- Injury while moving work materials;
- Neck, back, arm or wrist complaints from working for long periods at an unsuitable workstation;
- Psychological complaints due to structural work pressure, constant availability or insufficient rest.
An accident during working hours is not automatically an accident at work. If an employee falls while washing the windows, doing a private DIY job or playing with the children, the necessary connection with the work is missing. Likewise, if someone trips over the children's toys, the employer is in principle not liable for the personal injury. The employer usually has little influence over such purely private risks.
Accident during a short break
A short break does not always completely break the connection with the work. Someone who gets up to go to the toilet or fetch a drink may not be doing screen work at that moment, but the break can be closely connected to the working day. Even so, the employer is not automatically liable if the employee falls down the stairs at home or burns themselves with hot water. The court will look at factors such as the nature of the activity, the layout of the workstation, the employer's influence and the cause of the accident. A loose work cable across a walkway will be assessed differently from a slippery bathroom floor over which the employer had no influence. The answer therefore continues to depend on the specific circumstances.
The duty of care for a safe home workstation
The employer must check whether the employee can work safely and healthily at home. This does not mean that the employer has to furnish the entire home or remove every household risk. The duty of care is mainly focused on the work, the work equipment used and the immediate home workstation.
Fulfilling the duty of care properly includes:
- Including the risks of working from home in the risk inventory and evaluation (RI&E);
- Actively informing employees about working safely and healthily;
- Checking which facilities are available at home;
- Providing missing ergonomic aids or reimbursing their cost;
- Giving instructions on posture, screen work and breaks;
- Paying attention to work pressure and social isolation;
- Seriously investigating complaints and reports;
- Regularly evaluating the working-from-home policy.
The exact measures depend on the type of work, the duration and frequency of working from home and personal circumstances. More can be expected of an employer who has employees work from home structurally several days a week than when an employee exceptionally finishes a short task at home.
An ergonomically designed workstation
The home workstation must be set up according to ergonomic principles. Chair, desk, screen, keyboard and mouse must be usable in such a way that the employee can adopt a healthy and comfortable posture. When working on a laptop every day, just a laptop on the kitchen table is usually not enough. The employer can, for example, offer a separate keyboard, mouse, laptop stand, screen or suitable office chair.
When an employee does more than two hours of screen work a day, the keyboard and screen must in principle be usable separately from each other. The work must also be alternated at regular intervals with other work or a rest break. Lighting, screen glare, workspace and software can also be part of the assessment.
The employer does not have to supply a new desk or new chair if the employee already has suitable facilities. However, the employer must check whether the existing workstation is adequate. Simply sending a general message telling employees that they "should sit properly" will usually not be enough when working from home is structural.
Work pressure, stress and burnout while working from home
The duty of care is not limited to a good office chair. The employer must also have a policy against psychosocial workload, including excessive work pressure, bullying, aggression and undesirable behaviour. For people working from home, social isolation, constant digital availability and the blurring of the line between work and private life in particular need extra attention. These risks must be included in the RI&E and the occupational health and safety policy.
An employer can be liable for psychological damage when the complaints were caused by the work and the employer took insufficient measures. This can be the case, for example, when an employee structurally works overtime for a long time, repeatedly warns of an unsustainable workload and still receives no support or adjustment. A diagnosis of burnout does not in itself prove that the employer is liable. Psychological complaints can have various causes. The employee must therefore put forward sufficient concrete facts about the work, the workload, working hours and signals that the employer was aware of. The employer must then be able to show which measures they took to prevent overload.
Duty of care and checking the home workstation
The employer must be sufficiently informed about the conditions under which the employee works from home. This can be done with a questionnaire, a conversation with a prevention officer (preventiemedewerker), a voluntary digital workstation scan or an assessment by an occupational health and safety expert. If this shows that the workstation is not suitable, the employer must look for a reasonable solution.
The home remains a private environment. The employer may therefore not enter without permission to inspect the workstation. When asking for photos or carrying out a video inspection, the employee's privacy must also be taken into account. In principle, the employee can choose a less intrusive check, for example a checklist or an online conversation in which only the immediate workstation is shown.
If an employee refuses any cooperation, while the employer cannot establish without that information whether working from home is safe, the employer can decide that working from home is no longer justified. An available and safe workstation at the office can then be a suitable alternative.
Risk inventory and working-from-home policy
Every employer must have an RI&E and a plan of action. Structural working from home brings different risks than working at the office. The employer must therefore assess, among other things, screen work, physical strain, work pressure, availability, social isolation and the facilities available for working from home. A working-from-home arrangement can set out, among other things, at which locations the employee may work, how many days of working from home are possible, which equipment and furniture are provided and how a workstation assessment is carried out. It is also advisable to include information in the working-from-home arrangement about the applicable safety instructions, the way in which complaints must be reported, what the availability agreements are, which working hours apply and what must happen after an accident while working from home. In any case, a signed working-from-home agreement does not release the employer from their statutory duty of care. The employer cannot validly agree that every risk is entirely for the employee's account. Clear agreements do help to prevent risks and to establish afterwards which measures were taken.
Injury while working from home and the employee's responsibility
The employee must use the aids offered, follow reasonable safety instructions and report defects or complaints in good time. After all, at home an employer cannot constantly see that someone works from the sofa every day, leaves an office chair they were offered unused or structurally works much longer than agreed. The employee's own cooperation is therefore important.
However, a mistake or carelessness by the employee does not simply cancel out the employer's liability. Article 7:658 BW protects employees precisely because daily routine can make them less careful. Only when the damage was largely the result of intent or deliberate recklessness can the employer escape liability.
Deliberate recklessness requires that, immediately before their action, the employee was actually aware of its reckless nature. That is a strict standard. Ignoring an instruction, acting clumsily or forgetting to put a cable away is usually not enough.
Proving and reporting an accident while working from home
The employee must state and, if necessary, prove that they suffered damage while carrying out their work. With a sudden accident, this can be done, for example, with a report to the employer, witness statements, digital calendars, call records, photos and medical records. The employee does not always have to reconstruct exactly how every second of the accident went. With complaints that develop gradually, such as RSI or a burnout, it is more complicated to provide evidence. The employee must make it plausible that they worked under conditions that can be harmful and that their health complaints may have been caused by them. Once it has been established that the damage arose during work, the employer may have to provide evidence to the contrary and show that they took sufficient precautions. An employer who has recorded nothing about the workstation, instructions or complaints can therefore run into problems of proof.
In any case, the employee would be wise to report every serious accident or work-related health complaint to the employer in writing as soon as possible. State what happened, what work was being carried out, where the accident took place and what complaints have arisen. Ask the employer to register the report and draw up an accident report. The employer must then report an accident at work to the Netherlands Labour Authority (Nederlandse Arbeidsinspectie) if the accident leads to death, a hospital admission or permanent injury. If it only becomes clear later that the injury is permanent or that a hospital admission was needed after all, the report must still be made. This reporting obligation can also apply to a serious work-related accident that took place in the employee's home.
Read also: Liability and fire and evacuation drills (BHV).
Frequently asked questions about liability when working from home
Working from home does not completely change the legal responsibilities of employer and employee, but it does call for different agreements than working at the office. The employer must also ensure safe and healthy working conditions at home. On the other hand, an employee does not automatically have the right to work from home or to a fixed allowance for every day worked from home. A lot depends on the employment contract, the collective labour agreement (cao) and the internal working-from-home policy. Below we answer the most important questions on this subject.
Is working from home a right?
No, employees do not have a general legal right to work from home. An employee who has been employed for at least 26 weeks by an employer with at least ten employees can, however, submit a written request to change their place of work under the Flexible Working Act (Wet flexibel werken). The request must be submitted no later than two months before the desired start date. The employer must seriously consider the request, consult with the employee and communicate their decision in writing. However, the employer can reject the request. A request to work from home is not subject to the strict requirement that there must be a compelling business interest. A collective labour agreement, employment contract or company scheme may, however, include a more extensive right to work from home.
Is a working-from-home allowance compulsory?
No, the law does not oblige employers to pay a fixed allowance for electricity, heating, coffee or internet for every day worked from home. An allowance can be compulsory if it has been agreed in the collective labour agreement, employment contract or working-from-home arrangement. The employer must, however, provide the resources needed to work safely and healthily. If, for example, a suitable screen, keyboard or ergonomic chair is missing, the employer must, depending on the situation, provide the equipment, make it available or bear the reasonable costs of it.
What are the legal requirements for a home workstation?
The home workstation must be ergonomically sound. The employee must be able to adopt a good working posture, with the chair, work surface, screen, keyboard and mouse adjusted to each other and to the employee. With structural laptop use, a separate keyboard and a separate mouse are usually needed, possibly supplemented with a laptop stand or a separate screen. The screen must be easy to read, adjustable and free of disturbing glare. There must also be sufficient lighting, and long periods of screen work must regularly be alternated with other work or rest. The employer must include the risks of working from home in the RI&E, instruct employees and check which facilities each employee needs.
Is a working-from-home policy compulsory?
A separate document is not required by law. The employer is, however, obliged to include the risks of working from home in the RI&E, to record measures and to give employees clear information and instructions. Without written agreements, it can be difficult for the employer to prove later that the duty of care was fulfilled.
Is a working-from-home agreement compulsory?
No, working from home does not always require a separate working-from-home agreement or an annex to the employment contract to be signed. Employer and employee can also agree on working from home within the existing employment contract, a collective labour agreement or a general company scheme. A written agreement is particularly sensible when working from home is structural or when the existing employment contract names one fixed place of work.