Employer's liability

Employer's liability

Under the law, an employer can be held liable for damage suffered by an employee in the performance of their duties. An employer has a duty to take precautionary measures to prevent workplace accidents. Even if an employer has taken precautionary measures, in some situations, the employer may still be liable for the damage suffered by the employee.

In the event of a workplace accident, the employer bears the burden of proof to demonstrate that they have fulfilled their duty of care. In the Netherlands, this duty of care extends extremely far. Consequently, it is difficult for the employer in many situations to prove that the duty of care has been met.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of liability law. Contact us to discuss the possibilities.

The legal basis: Article 7:658 of the Dutch Civil Code and Article 7:611 of the Dutch Civil Code

Employer liability rests at its core on two provisions. The most important is Article 7:658 of the Dutch Civil Code. This establishes the employer's duty of care: the employer must arrange and maintain the workspace, tools, and equipment in such a way, and provide such instructions and supervise compliance, that the employee does not suffer damage while performing his work. If the employer fails to comply with this, he is liable for the damage.

In addition, Article 7:611 of the Dutch Civil Code (good employership) offers an additional legal basis. This provision is particularly relevant when the damage does not fall directly under the duty of care of Article 7:658 of the Dutch Civil Code, but the employer has nevertheless failed to act as a good employer. Which legal basis holds the strongest argument in your situation depends heavily on the facts. Our lawyers and in-house counsel assess this on a case-by-case basis, just as carefully for an international group as for the baker on the corner with a single employee.

Industrial accidents and occupational diseases

The duty of care applies not only to classic workplace accidents such as a fall from a ladder or an accident involving machinery, but also to occupational diseases. These are conditions predominantly caused by work, such as back problems due to physically demanding work, hearing damage due to noise, complaints caused by hazardous substances, or burnout due to structural overload.

In the case of occupational diseases, the causal link (the connection between work and illness) is often more difficult to establish than in the case of an acute accident. However, the employee only needs to make it plausible that the illness was caused by the work; thereafter, it is up to the employer to prove that he has fulfilled his duty of care.

Traffic accidents, commuting and working from home

Much debate arises regarding damage outside the workplace. The general rule is that purely commuting does not fall under Article 7:658 of the Dutch Civil Code. However, if an accident occurs during work-related journeys, the employer may be required, on the basis of good employership (Article 7:611 of the Dutch Civil Code), to take out adequate insurance for employees who are exposed to danger in traffic. In the absence of such insurance, the employer may be liable for damage that is not covered as a result.

Working from home also falls under the duty of care: the employer must ensure a safe and ergonomically sound home workplace, in line with the requirements of the Working Conditions Decree. The boundaries of liability in this area are evolving, making it important to have a specific incident legally assessed at an early stage.

Hired workers, agency workers and self-employed professionals

The protection afforded by Article 7:658 of the Dutch Civil Code is not limited to employees with a permanent contract. Pursuant to Article 7:658, paragraph 4, of the Dutch Civil Code, the duty of care also applies to persons performing work outside of an employment relationship in the course of the client's business, such as agency workers, seconded employees, and, where applicable, self-employed persons. In the case of agency work, the agency (the formal employer) and the hirer may be jointly liable. For entrepreneurs who regularly work with flexible workers, it is therefore advisable to clearly establish in advance who bears which safety risk.

When is the employer not liable?

The employer escapes liability in two situations: if he proves that he has fully complied with his duty of care, or if the damage is the result of intent or conscious recklessness on the part of the employee himself. Judges apply this latter exception strictly and with restraint; conscious recklessness only exists if the employee was actually aware of the reckless nature of his actions immediately before the accident. A snapshot of inattention or routine is insufficient for this.

Damage and compensation

Once liability has been established, the extent of the damage must be assessed. This includes, among other things, medical expenses, loss of earning capacity and loss of income, pain and suffering (non-material damage), costs for domestic help, home modifications, and future care costs. We assist both employers in managing and disputing claims and employees in recovering their damages. You can read more about assessing and recovering damages on our page regarding damages and compensation claims.

The role of insurance

Employer liability and insurance are closely linked. Good general liability insurance for businesses (AVB) and, for traffic risks, WEGAM insurance can cover significant financial losses. At the same time, the very question of whether the employer has taken out 'adequate insurance' frequently leads to disputes. We assess your policies in conjunction with your liability risks. Also read our page on liability insurance.

Frequently asked questions about employer liability

Who must prove that an accident occurred? The employee must make it plausible that he suffered damage in the performance of his work. Subsequently, the burden of proof shifts: the employer must prove that he fulfilled his duty of care.

Does the liability also apply to a small business? Yes. The duty of care under Article 7:658 of the Dutch Civil Code applies to every employer, from a large group to a sole proprietorship with one employee.

Am I liable as an employer if the employee was negligent? Usually, yes. Employers must take into account that employees do not always exercise the necessary caution; liability only ceases in cases of actual intent or conscious recklessness.

Liability, damage and insurance

Employer liability is part of our broader expertise in Liability, Damages, and Insurance. Whether the liability arises from the law, a tort or the employment relationship, our mixed teams of lawyers and in-house counsel assist both corporations and small business owners, from advice and prevention to litigation. Please feel free to contact us to discuss your situation without obligation.