Why you set a good example as an employer

As an employer, you are almost always liable for the damage suffered by your employee or hired freelancer in the event of a workplace accident, unless you can prove that you fulfilled your duty of care or that the damage was the result of intent or conscious recklessness. That duty of care does not end with the drafting of rules: you must also enforce them and, above all, set a good example yourself. An employer who violates safety rules himself or tacitly condones their violation will find it much more difficult to invoke the recklessness of another later on.

What is employer liability?

Employer liability means that, in principle, an employer is responsible for injury or other damage sustained by an employee during work. The basic principle in Dutch employment law – laid down in the statutory regulations concerning workplace accidents (Article 7:658 of the Dutch Civil Code) – is that the employer has an extensive duty of care to ensure a safe working environment. If something goes wrong, the focus lies on the question of whether the employer did enough to prevent it.

In concrete terms, that duty of care means, among other things, that an employer must ensure:

• a safe layout of the workplace and safe equipment;
• sufficient instruction, information and supervision;
• the appropriate protective equipment for the work being performed;
• clear safety rules that are also observed in practice.

Because the bar for that duty of care is set high, the employer is often held liable in practice after a workplace accident. The reasoning behind this: the employer determines how the work is organized and is best able to manage safety risks.

Does employer liability also apply to self-employed professionals?

Yes, in many cases it is. The duty of care is not limited to people with an employment contract. A hired self-employed professional can also enjoy protection under certain circumstances and hold the employer (client) liable for damages incurred. This applies particularly when the self-employed professional is (partially) dependent on the client for their safety and the work falls within the normal business operations of that company.

For SME entrepreneurs, this is an important point of attention: hiring a self-employed professional instead of employing staff does not mean you lose your safety responsibility. Therefore, ensure that hired workers also receive the same safety instructions and protective equipment.

When is an employer not liable?

The employer is not automatically responsible for everything. Liability may be absent if the employer can demonstrate that:

• he has fully complied with his duty of care ;
• the damage did not occur during work or on the work floor;
• the damage is substantially the result of intent or conscious recklessness on the part of the employee.

In principle, the burden of proof lies with the employer. It is precisely this last exception – conscious recklessness – that is often invoked, but rarely succeeds in practice. Employers also resort to this argument in cases of, for example, drunkenness in the workplace .

What exactly does deliberate recklessness mean?

Conscious recklessness is not easily established. The employee must have been actually aware of the reckless nature of his behavior and the risk of injury immediately prior to the accident. The fact that an action turns out to be unwise or dangerous in retrospect is therefore not sufficient. This involves a high threshold, and the employer must prove that conscious recklessness.

Practical example: the self-employed worker hitchhiking and the forklift

A court ruling clearly illustrates how this can play out in practice. A self-employed worker had been working for a storage company for years, where he loaded and unloaded big bags. At one point, a colleague drove past with a forklift. The self-employed worker jumped onto the forklift, hid behind the big bag, and suddenly waved at the driver. The driver was startled, braked, and the shifting big bag crushed the self-employed worker's leg. The result: a broken leg.

The client argued that there was no employer liability: after all, there was a clear prohibition against piggybacking, which the self-employed worker had ignored. On appeal, the judge did not agree with this.

Reckless, but not intentional

The judge established that the self-employed worker had indeed jumped onto the forks of the forklift. However, it could not be inferred from the witness statements that he had deliberately intended to startle the driver. Moreover, the statements indicated that the forklift was traveling at walking speed – to the self-employed worker's advantage.

The decisive question was whether there was deliberate recklessness. For this, the person concerned must be sufficiently aware of the reckless nature of his conduct. The judge questioned this: riding along on the forklift happened frequently, there was hardly any supervision regarding the prohibition, and even the director was occasionally caught doing so. Consequently, it was insufficiently demonstrated that the self-employed worker was aware of the reckless nature. The conclusion: no deliberate recklessness, and the employer remained liable for the personal injury.

Why leading by example counts legally

The crux of such a matter for every entrepreneur: a ban on paper is not enough. Anyone who establishes a safety rule but turns a blind eye—either personally or through supervisors—to violations undermines their own position. When things go wrong, it is then much more difficult to invoke the recklessness of an employee or self-employed professional.

Leading by example is therefore not only good leadership, but also legally relevant. A safety culture in which the rules apply to everyone – from the newest recruit to the director – strengthens your evidentiary position should an accident unexpectedly occur.

Duty of care is more than employment regulations

Documenting prohibitions and safety regulations, for example in employment regulations or an employee handbook, is an important first step to fulfilling your duty of care. But it does not stop there. To truly strengthen your position, ensure that you:

1. lays down the rules in a clear document that everyone knows;
2. actively monitors compliance with it;
3. addresses violations with warnings and, if necessary, sanctions;
4. consistently sets a good example himself, also at the leadership level;
5. instructions and protective equipment to hired freelancers.

A well-drafted employee handbook and clear agreements in the employment contract help you demonstrably fulfill that duty of care. Our legal experts would be happy to draft these documents tailored to your needs.

What to do after a workplace accident? Step-by-step plan

In the unlikely event of an accident in the workplace, the first few hours count. An orderly approach protects both your employee and your legal position. Broadly speaking, follow these steps:

1. Ensure safety and assistance. Secure the victim, call for immediate medical help if necessary, and prevent further risks in the workplace.
2. Report a serious accident. You must report a workplace accident resulting in serious injury, permanent injury, hospitalization, or a fatal outcome to the Dutch Labour Inspectorate. Where possible, leave the situation unchanged until the inspectorate responds.
3. Document the circumstances. Note what happened, who was present, and what safety measures were in place. Collect witness statements and photographs; this evidence will be decisive later.
4. Do not admit liability too quickly. Refer a liability claim to your insurer and have your legal position assessed before admitting or denying anything.
5. Evaluate and improve. Adjust your risk assessment, instructions, and supervision where necessary to prevent recurrence.

Frequently asked questions about employer liability

Am I, as an employer, always liable in the event of a workplace accident?

Not always, but often. The basic principle is that you are liable unless you can prove that you have fully complied with your duty of care, that the damage did not occur during work, or that there was intent or conscious recklessness on the part of the employee. In principle, the burden of proof lies with you as the employer.

Does my duty of care also apply to hired self-employed professionals?

In many cases, yes. If a self-employed person is (partially) dependent on you for their safety and the work fits within your normal business operations, they can invoke the same protection as an employee. Therefore, give hired workers the same instructions and protective equipment.

What is the difference between recklessness and deliberate recklessness?

Mere unwise or dangerous behavior does not constitute conscious recklessness. For conscious recklessness, the employee must have been genuinely aware, immediately before the accident, of both the reckless nature of his behavior and the risk of injury. That threshold is high and is rarely met.

Is a safety ban in my regulations sufficient to avoid liability?

No. A ban on paper alone is not enough. You must actually enforce compliance through supervision and sanctions, and lead by example. If a rule is systematically tolerated, it weakens your position in the event of an accident.

Does my insurance cover employer liability?

Business liability insurance (AVB) often covers damage to employees caused by a workplace accident, but the exact coverage varies by policy. Many accidents involving traffic or motor vehicles fall under separate conditions. Therefore, carefully check your policy and coverage exclusions and seek advice in case of doubt.

For how long can an employee hold me liable after an accident?

A claim for compensation does not become time-barred immediately; statutory limitation periods apply that depend on the circumstances and the moment the damage became known. Because personal injury sometimes only comes to light later, it is wise to carefully preserve records of the incident and to seek timely legal advice regarding the applicable time limit when filing a claim.

What should I do after a workplace accident?

First ensure the safety and any necessary assistance to the victim, and report a serious accident to the Dutch Labour Inspectorate. Subsequently, thoroughly document the circumstances and have your legal position assessed before admitting or denying liability. A timely legal check prevents mistakes with major consequences.

Need help with employer liability or your personnel file?

Do you want to know whether you are adequately fulfilling your duty of care as an employer, or are you facing a liability claim following a workplace accident? The legal experts at MKB Juristen provide practical advice, assess your position, and draft the appropriate documents where necessary.

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