In 2019, a workplace accident could cost you more… Some tips

Since January 1, 2019, as an employer, in the event of a serious workplace accident, you may also be liable for emotional distress damages in addition to standard damages: compensation for pain and suffering for the relatives of an employee who dies or sustains serious and permanent injury. As a result, your financial risk in the event of a workplace accident has increased. Below, you can read what emotional distress damages are, who is entitled to them, approximately how high the compensation is, and what concrete steps you can take now to limit your liability.

What is emotional distress?

Damages for emotional distress are compensation for the grief and suffering of loved ones when someone dies or sustains serious and permanent injury due to the actions of another. It therefore does not concern material damage (such as lost income or medical expenses), but rather the emotional suffering of those close to the victim.

Before January 1, 2019, the Netherlands did not have this compensation. Next of kin could at most claim compensation for shock damage: compensation for their own traumatic experience, for example, after personally witnessing a serious accident. The grief over the loss or injury of a loved one was not eligible for compensation. This changed with the Act on Compensation for Affective Damage.

Since when has compensation for emotional distress applied?

The Emotional Damage Compensation Act entered into force on January 1, 2019. The regulation applies to events that occurred on or after that date. In principle, there is no entitlement to emotional damage for accidents that occurred before 2019.

Important for employers: the law also applies to workplace accidents. If an employee dies or sustains serious and permanent injury as a result of a workplace accident, and you as the employer are liable, then next of kin may claim damages for emotional distress in addition to other damages.

Who is entitled to compensation for emotional distress?

The circle of beneficiaries is legally defined. Broadly speaking, it concerns the immediate family of the victim:

• the spouse, registered partner or life partner;
• children and (where applicable) stepchildren;
• parents;
• and persons who have a similarly close personal relationship to the victim.

The circle has therefore been deliberately kept limited. However, there is a proposal to expand the group, for example to include brothers and sisters. As long as such an expansion has not actually taken effect, the current, more limited circle remains in effect. Therefore, in a specific case, always seek advice regarding exactly who is eligible.

How much is the compensation for emotional distress?

The compensation is a fixed, tiered amount that depends on the situation: whether the victim has died or sustained serious and permanent injury, the nature of the relationship, and whether a crime was committed. The amounts are in the order of several tens of thousands of euros per eligible person and are updated periodically, meaning the exact amounts may change over time.

Because multiple relatives can make a claim simultaneously, the total amount can add up considerably. Moreover, emotional distress damages are added to other damages, such as death or personal injury damages. For a current and exact amount in your situation, consult the applicable regulations or seek advice.

What does this mean for you as an employer?

The employer has an extensive duty of care regarding the safety and health of employees. You must ensure a safe working environment: make safety regulations known, maintain adequate supervision, take preventive measures, and intervene where necessary.

In the event of a workplace accident, it is often quickly assumed that the employer is liable. In practice, you can only avoid this liability if you can demonstrate that you have fulfilled your duty of care, or if there is a case of conscious recklessness or intent on the part of the employee themselves. Let us not mince words: proving that you have fulfilled your duty of care is difficult in practice. That is precisely why prevention and proper documentation are so important.

Communicate the safety regulations demonstrably

The duty of care requires you, among other things, to make safety regulations sufficiently known. This is especially important when working with machines or hazardous equipment. Post safety instructions near the machines, but pay particular attention to the safety briefing for both new and existing employees.

It is not sufficient to merely refer to the regulations. Employees must be reminded of them in an understandable manner, and ongoing prevention training is not a luxury but a necessity. Furthermore, document that instructions have been given and followed, so that you can demonstrate this later.

What do you do in case of a violation of safety regulations?

As an employer, you must sufficiently monitor compliance with regulations and respond adequately to violations. A response can range from a warning to an actual sanction. For instance, a Court of Appeal has previously ruled that serious and repeated violations of safety regulations can, in certain cases, even justify summary dismissal. At the same time, there are rulings in which the judge deemed such a dismissal to be excessive. Therefore, it requires careful attention: act with due diligence and good substantiation.

At MKB Juristen, we think along with you right from the earliest stages. Not only by referring to specific safety regulations, but also by including additional sanctioning mechanisms in the employment contract . Consider a penalty clause that allows for the sanctioning of a violation of certain safety regulations. Whether such a penalty clause is possible depends on a number of factors; a collective labour agreement, for example, may not prohibit it.

Concrete steps to reduce your risk

1. Map out where the greatest safety risks lie within your company and take preventive measures.
2. Communicate safety regulations clearly and reinforce this with regular training and briefings.
3. Actively monitor and take demonstrable action in the event of violations.
4. Document instructions, training, and checks in writing so that you can prove your efforts.
5. Have your employment contracts reviewed for appropriate safety and sanctions provisions.
6. Check whether your liability insurance adequately covers workplace accidents and emotional distress.

Frequently asked questions about emotional distress damages in workplace accidents

Does compensation for emotional distress also apply in the case of a workplace accident?

Yes. If an employee dies or sustains serious and permanent injury as a result of a workplace accident and the employer is liable for this, the next of kin may claim damages for emotional distress in addition to other damages.

Who can claim damages for emotional distress?

Broadly speaking, the partner, children, and parents of the victim, and persons who stand in a similarly close relationship to the victim. The legal circle of beneficiaries has been deliberately kept limited.

Is emotional distress the same as shock damage?

No. Shock damage compensates for a loved one's own traumatic experience, for example, after witnessing an accident firsthand. Affective damage compensates for the grief over the death or serious injury of the loved one themselves.

How do I avoid liability as an employer?

It is rarely possible to rule it out completely, but you significantly limit the risk by demonstrably fulfilling your duty of care: making regulations known, providing training, supervising, intervening in the event of violations, and properly documenting everything. An appropriate employment contract and insurance are also part of this.

For which accidents does the scheme apply?

Compensation for emotional distress applies to events that took place on or after January 1, 2019.

Need help with workplace accidents and liability?

Do you want to limit your risk of liability and emotional distress, have your employment contracts reviewed, or seek advice regarding a specific workplace accident? Our employment law are happy to think along with you, right from the preventive phase. View our legal assistance for entrepreneurs or schedule a no-obligation intake consultation directly.