In a recent ruling by the Midden-Nederland District Court (ECLI:NL:RBMNE:2024:4009), the employer’s duty of care in a labor dispute took center stage. The case concerned a medical examiner who felt threatened by a client during a conversation. The incident led to her calling in sick and a long period of incapacity for work. The doctor indicated that she had experienced insufficient support from her employer, which only made the situation worse.
Facts
The employee, a doctor specializing in socio-medical advice, was confronted with an intimidating client during a consultation. She later even reported this to the police. The employer initially appeared to offer support to the employee, but communication quickly deteriorated.
The employer had a protocol for “psychosocial workload,” which included, among other things, aftercare conversations and access to a confidential advisor. However, the implementation of this protocol in practice fell short. The employee wanted to speak with a confidential advisor 6 days after the incident. The employer responded that it did not currently have a confidential advisor appointed. This confidential advisor was only appointed months later, and the prescribed aftercare conversations did not take place.
As a result of the incident, the employee developed PTSD and a depressive disorder, for which she received long-term treatment.
The employee asked the subdistrict court for the following:
- A declaratory judgment that the employer is liable for the damage and future damage suffered by the employee, as well as medical costs and travel expenses, lost income, and compensation for non-material damage. The employee also claimed all extrajudicial and legal costs;
- The employee based this claim on the fact that she became unable to work while carrying out her duties and suffered damage as a result, and that the employer is liable for this because it failed to meet its duty of care towards the employee under Article 7:658 of the Dutch Civil Code. According to the employee, the aftercare was also insufficient. These circumstances led to a deterioration in her recovery.
Employer’s position
The employer disputed this claim, arguing that the link between the work and the damage was too uncertain and undefined. The employer also argued that it had met its duty of care by providing adequate aftercare conversations to the employee.
The court’s ruling
The court ruled that the employer is liable for the damage suffered by the employee, arising from insufficient aftercare following a work-related incident, in accordance with Article 7:658 of the Dutch Civil Code. The employer is not blamed for the incident itself, but the aftercare following the incident fell seriously short. The main points of the ruling are set out below:
- Work-related: the court considered it proven that the damage was directly related to the employee’s work, since she called in sick immediately after the incident and was fully unable to work as a result.
- Breach of duty of care: the employer failed to provide protocol-based aftercare, such as timely appointment of a confidential advisor and holding aftercare conversations. In addition, the employer lacked an empathetic approach, which hindered the employee’s recovery.
- Compensation: the court granted the requested declaratory judgment, so that the damage can be further established in a separate damages assessment procedure. It was acknowledged that the employee incurred costs, but the exact extent of the damage still needs to be determined.
- In addition, the employer was ordered to pay the legal costs and a fixed compensation for extrajudicial costs.
Importance for employers
This case highlights that protocols are only effective if they are actually complied with and implemented in practice. Timely appointment of a confidential advisor and offering the right aftercare conversations are not formalities, but essential steps to support employees after incidents and to avoid legal liability for failing to comply with the duty of care under the Working Conditions Act (Arbowet).
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