More than a quarter of employees suffer at some point from burnout complaints1. In most cases, a heavy workload is a contributing factor to a burnout, but private factors can also play a role. To what extent can an employee claim compensation or damages from their employer as a result of a burnout?
The employer’s general duty of care
The employer has a general duty of care to provide a safe working environment. This duty of care is related to the relationship of authority, including the authority to organize the workplace and the authority to give instructions to employees. If the employer fails to fulfil this duty of care, it will be liable for damage suffered by an employee. However, an employer will not be liable if the damage has been caused intentionally or by deliberate recklessness on the part of the employee.
The employer’s liability for a burnout
To answer the question whether anemployer is liable for an employee’s burnout, it is important to establish whether there is a causal relationship between the work and the burnout. In other words: has the employee’s psychological and/or physical injury been sustained in the performance of their work and, if so, what damage has this caused? This causal relationship is not always easy to demonstrate in a burnout situation, because a burnout is often caused by a combination of work and private circumstances. The employee, however, only needs to demonstrate a sufficiently plausible link: there must be a considerable degree of probability that the work done has caused the burnout. The employee can demonstrate this connection with the help of expert statements, such as a statement from a doctor and/or psychologist.
The employer’s duty of care
Once the causal relationship between the employee’s work and the burnout has been sufficiently established, it must be determined (a) whether the employer complied with its duty of care, and (b) whether the employee was at fault (“eigen schuld”). A relevant factor is whether the burnout was foreseeable by the employer. It is also important to establish whether the employee informed the employer in time about their complaints and, if so, how the employer responded.
Persistent heavy workload
The mere fact that an employee regularly works overtime does not in itself mean that the employer will be held liable for the employee’s burnout. From case law it follows that the employer can be held liable only if it was clear that the employee’s workload was too heavy, and the employer failed to take action. It is also relevant whether the employee informed the employer about the heavy workload in good time.
Fair compensation in case of dismissal?
Another possibility of claiming compensation for damage causes by a burnout lies in the so-called “fair compensation” due to “serious culpability of the employer”. In dismissal procedures, a burnout can contribute to the conclusion that the employer has acted in a seriously culpable manner.
For example, on 21 May 2019, the Court in The Hague ruled that an employer acted in a seriously culpable manner by having its employee work double shifts, without compensating her in extra holiday in lieu or paying an overtime allowance. The Court concluded that the employer had not taken adequate and effective measures to reduce the workload. The judge dissolved the employment agreement on the ground that there was a disrupted employment relationship and awarded the employee compensation of € 30,000.- (“billijke vergoeding“).
Reimbursement of reintegration expenses
An employer must pay reasonable costs for the reintegration of a sick employee. Irrespective of whether an employer is liable for the burnout (or for seriously culpable acts), an employee can therefore claim reimbursement, for example for psychological help. However, the employer may also take into account benefits that the employee receives under insurance policies taken out by the employee or by the employer. In addition, an employer cannot be required to provide financial resources towards reintegration processes where it is clear in advance that they will not lead to the intended result.
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