Employer liability is the employer’s liability for loss an employee suffers in the course of their work. The law imposes a far-reaching duty of care and reverses the burden of proof.
Legal basis
Article 7:658 of the Dutch Civil Code requires the employer to organise the workplace, the equipment and the work, and to give such instructions, as is reasonably necessary to prevent the employee suffering loss. Paragraph 2 makes the employer liable unless it proves that it met that duty, or that the loss was to a significant extent the result of intent or conscious recklessness on the employee’s part. Paragraph 4 extends liability to hired-in staff and self-employed contractors working in the course of the client’s business. Article 7:611 adds good employership, on the basis of which the Supreme Court has recognised a duty to insure employees exposed to particular traffic risks. The Working Conditions Act feeds into the duty of care: a breach of it strongly indicates that the duty was not met.
How it works in practice
The employee need only assert and make plausible that they suffered loss in the course of their work. After that the burden lies with the employer. That makes the risk inventory and evaluation, the instructions, supervision of compliance and the records of all this the heart of every case. In occupational diseases with a long latency, such as exposure to hazardous substances, the same documentation is decisive.
Where it goes wrong
Employers issue personal protective equipment but do not supervise its use; that is not enough. A second error is assuming an experienced employee needs less instruction; the case law expressly allows for the fact that employees grow careless. Third, the position of hired-in workers is overlooked.
Related terms
Liability connects to the sick pay obligation, to tort and to damages.
Has there been an accident at work? Our employment lawyers advise employers and employees alike.
