(Poor) Health and your employees

According to a news message on NU.nl from the 15th of October 2015, the number of employees that fell ill through psychological complaints raises significantly. A research of Capability, a sick leave specialist in the Netherlands, showed this. Employees have been scared for years to lose their jobs and had to walk on their toes because of that. Ultimately it became too much for many employees, with psychological complaints and incapacitation as result. This form of sick leave already constitutes 1 in 5 in 2014, which raised to 31% in 2015. According to the Municipal Health Service, the Netherlands loses 11 billion euros to sick employees, equal to 250 euros daily for every sick employee. An enormous amount.

Liability employer

Not only burn outs are a risk for employers. The consequences of sick employees for employers are larger than you think. The same goes for their responsibilities and liability. How does that work exactly?

Damages

More employees commence proceedings against their (former) employers on the grounds of disease symptoms, caused or worsened by their work. These cases not only deal with burn outs, but also with other health complaints like diabetes, cardiovascular diseases and even premature death caused by too much food and too little exercise. Art. 7:658 CC contains the legal ground on which more and more claims for damages are based, underlying the injuries that employees get by exercising their jobs. For a long time it was hard to prove whether a disease or injury was caused by work circumstances. The Supreme Court meanwhile ruled in several cases positively, which could aid the employee.

Casual link

When the situation occurs in which the employee cannot prove the casual link between the shortcoming on the side of the employer and the injury, a judge can lower the damages equal with a (based on a motivated estimation) degree to which the employer can be held responsible for the injury. The chance that this casual link exists must be present significantly. The Supreme Court already ruled that a chance of 17% percent does not meet that standard. Such a proportional liability must be applied reluctantly, but it offers possibilities. With the expansion of technological possibilities to assert this casual link, in the future more of such cases could become reality. Be careful with your employees as employer.

Case example

A judgment from the High Court of Arnhem-Leeuwarden shows another possible risk of the employer in case of sickness. An employee, sick because of psychological complaints, did not come to an agreement with his employer, even though a mediator was present. In the end the labour conflict was so intense that termination of the labour agreement was a realistic choice. Many legal proceedings followed. The High Court observed shortcomings in the expert opinion, which identified that the employee was not sick. Based on that report the employer started a proceeding to terminate the labour agreement. The High Court found out that right to be heard was not applied and that the physician of the insurer did not have the same data as the company physician. Moreover the High Court criticised the decision of the employer to start this ‘legal path’ after the failure of the mediation. The correct path would have been calling in an expert on labour law. Lastly the employer should have suggested legal counsel to the employee to ensure that his interests were dealt with accordingly.

Calling in a labour law expert and legal aid

This judgment not only shows that you have to call in legal aid yourself in time, but also that employers should suggest this when the situation asks for it. Also you have to be critical towards your company physician and other experts, which otherwise could cost you. When you would like more information, please contact our attorney mr. Suzanne van Dijsseldonk.