Workplace accident and drunk as a skunk: who is liable?

In principle, an employer is liable for a workplace accident based on their duty of care (Article 7:658 of the Dutch Civil Code), even if the employee was intoxicated. Drunkenness is not a free pass in itself: it does not automatically absolve you of liability as an employer. You are only acquitted if you can prove that you fulfilled your duty of care, or that the employee acted with intent or conscious recklessness. If you allowed alcohol to be served or tacitly permitted drinking, you actually run an increased risk. Below, we explain how employer liability, drunkenness, and your alcohol policy relate to each other.

What is employer liability in the event of a workplace accident?

The employer has an extensive duty of care for the safety and health of his employees. This duty of care is laid down in Article 7:658 of the Dutch Civil Code. As an employer, you are obliged to be aware of potential hazards in the workplace, to anticipate them, and to intervene proactively where necessary.

In practice, the bar is set high. If an employee sustains an injury due to a workplace accident, it is readily assumed that the employer is liable. You must then demonstrate that you took all measures that could reasonably be expected of you to prevent the accident. Providing that proof is often difficult. As a result, in many cases, the employer bears the costs of a workplace accident, such as compensation, continued payment of wages, and legal costs.

What exceptions do the law and case law provide?

However, the employer is not always liable. The law and case law recognize several so-called grounds for exoneration: situations in which the employer can remain exempt. Importantly, the burden of proof lies with the employer. You must demonstrate that an exception applies, and that is by no means always successful.

• You have fulfilled your duty of care. You demonstrate that you took all reasonable safety measures and that the accident could not have been prevented even then.
• Intentional recklessness on the part of the employee. The employee was aware of the dangers shortly before the accident and yet acted irresponsibly. This is a strict test; the judge does not readily assume intentional recklessness.
• Intent on the part of the employee. The employee caused the injury knowingly and willfully.

Drunkenness may play a role within these exceptions, but is not in itself an independent ground to evade liability.

Drunkenness does not relieve the employer of his duty of care

It would not be logical if, as an employer, you always had to bear the consequences when an employee falls off a ladder while drunk. However, the reverse is not true either: drunkenness does not automatically exempt you from liability. Your duty of care actually entails that you must intervene as soon as you notice that an employee is under the influence.

Specifically, you are expected to:

• a clear alcohol and drug policy within your organization;
• adequately informs employees about the risks of working under the influence;
• takes actual action when you notice that someone has been drinking, for example by having that person stop working.

If you fail to do so, drunkenness can actually turn against you. The judge takes all these circumstances into account when determining whether you have fulfilled your duty of care.

Extra babysitting during Friday drinks or a company party

The situation becomes even more risky when you, as the employer, are the one serving the alcohol. A Friday afternoon drinks gathering with alcoholic beverages is therefore not without risk, especially if it doesn't stop at just that one glass.

That an employer can also come into the picture outside the ordinary workplace is evident from a well-known ruling by the Supreme Court of 9 November 2007 (ECLI:NL:HR:2007:BA7557). During a staff party, several employees threw lamp oil onto a burning barbecue, resulting in extensive damage. The Supreme Court ruled that the employer could be held liable for this damage: there was a sufficient connection between the party and the employment relationship, and it did not matter that the party took place outside working hours. The damage fell within the employer's sphere of risk.

The core issue for you as an entrepreneur: if you organize an activity where alcohol is involved, your responsibility does not end at the office front door. Whether employer liability applies depends on the factual circumstances, such as whether the employer organized the activity, the level of supervision, what precautionary measures were taken, and what measures could have been taken.

How do you limit your risk as an employer? Draw up an alcohol protocol

If you want to reduce your liability risk, an alcohol protocol (alcohol and drug policy) is an important tool. Such a protocol establishes which rules apply, how managers must act, and what the consequences of violations are. Benefits:

• it shows that you take your duty of care seriously and helps answer the question of liability in your favor;
• it provides managers with a guideline on how to act in cases of drunkenness, because their actions (or inactions) count towards your liability;
• It contributes to a safe working environment and prevents disputes afterwards.

Strict adherence to it is important, however . A protocol that ends up gathering dust in a drawer offers little protection. Preferably, also document the policy in your employee handbook so that it is known to everyone. Are you unsure about the agreements in the employment contract regarding conduct and safety? Then have them legally reviewed.

Step-by-step plan following a workplace accident involving alcohol

Should an accident unexpectedly occur in which alcohol plays a role? Then act carefully and in a structured manner:

1. First, attend to the injured person. Call for medical assistance immediately if necessary and secure the employee.
2. Document the situation. Note what happened, who was present, and what circumstances played a role. Photos and witness statements may be important later.
3. Report a serious accident. An accident resulting in serious injury or death must be reported to the Dutch Labour Inspectorate. If you are unsure whether reporting is mandatory, seek advice.
4. Contact your insurer. Inform your liability insurer in a timely manner so that you do not forfeit any rights.
5. Seek legal advice. Have your position assessed before admitting liability or making commitments.

Frequently asked questions about liability for drunkenness

Am I liable as an employer if a drunk employee causes an accident?

That depends on the circumstances. You are not automatically liable, but drunkenness does not automatically absolve you of your duty of care either. If you have provided sufficient information, implemented an alcohol policy, and intervened where necessary, you are in a stronger position. If you have done nothing, you run a risk.

Does my duty of care also apply during Friday afternoon drinks or a company outing?

Yes. If you organize an activity yourself where alcohol is served, your responsibility can in principle extend to that as well. Case law shows that the employer can be held liable for damage occurring at such a party, especially if supervision was lacking.

What is the difference between deliberate recklessness and ordinary carelessness?

Conscious recklessness only exists if the employee was actually aware of the danger just before acting and proceeded nonetheless. Ordinary carelessness or an error of judgment is not sufficient for this. The court rarely accepts conscious recklessness.

What are the minimum requirements for an alcohol protocol?

Consider clear rules regarding alcohol and drugs in the workplace and during company activities, the role and responsibility of managers, the methods of monitoring, and the consequences of violations. It is important that the policy is known and consistently adhered to.

Who must prove whether the employer is liable?

The burden of proof for the exceptions lies with the employer. If you wish to rely on compliance with the duty of care or on willful recklessness, you must make this plausible. In practice, this is often difficult.

Need an alcohol protocol or advice? We can help you

Would you like to have an alcohol protocol drawn up or know where you stand as an employer after a workplace accident? The legal experts at MKB Juristen are happy to assist you. We advise on your duty of care, your liability, and the appropriate precautionary measures.

• View our employment law assistance for questions regarding personnel and liability.
• Have your employment documents handled via our contracts.
• Or schedule a meeting directly: schedule intake.