An accident in the workplace can happen easily, and it is something every employer would rather prevent. But once it has happened, the question arises: when are you liable as an employer for the damage? Under Article 7:658 of the Dutch Civil Code you are required to take all measures that are reasonably necessary to prevent employees from suffering harm while carrying out their work. This applies to both physical and psychological harm, for example resulting from accidents or work-related stress. The duty of care extends to all staff: permanent employees, temporary agency workers and hired-in personnel.
If an accident does occur, the employee must first show that they suffered harm while working. The burden of proof then shifts to the employer. You will need to show that you complied with your duty of care, or that the harm resulted from intent or deliberate recklessness on the part of the employee.
The obligations
Complying with the duty of care means you must create a safe and healthy working environment. Among other things, you do this by drawing up clear safety protocols and checking that employees comply with them, properly maintaining machinery, providing the right protective equipment, and ensuring ergonomic workstations. Fostering a culture in which bullying and undesirable behaviour are not tolerated is also of great importance.
In addition, drawing up a Risk Inventory & Evaluation (RI&E) is a statutory requirement for every company with at least one employee. In an RI&E, you map out all possible occupational risks and draw up a concrete plan to prevent them. Employees must be properly instructed on working safely, for example on the use of (hazardous) machinery. The procedures to be followed in the event of an emergency must also be known. Case law is strict: you must be able to show on what date, and to whom, you gave instructions. Good documentation of these moments is therefore extremely important!
An employer’s duty of care covers not only physical safety but also employees’ mental wellbeing. An employer can be held liable if an employee develops burnout as a result of work-related stress, provided a demonstrable causal link exists. The duty of care also continues to apply when working from home, so make sure to provide an ergonomic workstation. For employees temporarily working abroad, the duty of care likewise continues to apply, for example through the employer taking out the right insurance.
The consequences
If an employee suffers harm and the employer cannot show that it complied with its duty of care, liability for the damage is quickly established. It is therefore very important that employers take the duty of care seriously and properly record when which measures were taken.
Ignoring the duty of care can have serious consequences, and can lead to substantial financial claims covering both the harm already suffered and any future harm to the employee. In addition, the Labour Inspectorate can impose fines, for example for failing to report a workplace accident. In extreme cases, an employer can even face criminal prosecution. The duty of care is therefore not a non-committal recommendation, but a statutory obligation.
In conclusion
As an employer, you would therefore do well to take your duty of care seriously. By actively investing in a safe and healthy working environment, you protect not only your employees but also your organisation against substantial liability risks. Would you like to know which measures you can take to not only prevent accidents but also to limit or exclude legal liability? The corporate lawyers at The Legal Company are happy to help. Contact us directly by emailing info@thelegalcompany.nl or calling 020-345 0152.
