More than a quarter of the employees sometimes suffer from burnout complaints1. In most cases, a burnout is (partly) caused by a high workload. But also private factors can play a role. To what extent can an employee claim compensation of damages as a result of the burnout from the employer?
The employer’s general duty of care
The employer has a general duty to provide a safe working environment. This duty of care is related to the relationship of authority, the authority to organize the workplace and the authority to give instructions to employees. If the employer fails to fulfil his duty of care, he is liable for the damages the employees suffer. The employer is however not liable if the damages are due to intent or deliberate recklessness on the part of the employee.
The employer’s liability for a burnout
For the question whether the employer is liable for the burnout, it is mainly important 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 the 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. It is sufficient for the employee to demonstrate a sufficiently plausible link: there must be a considerable degree of probability that the work 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
If the casual relationship between the work and the burnout has been sufficiently established, it must be assessed (a) whether the employer has complied with his duty of care and (b) whether the employee has so-called “own fault” for the burnout. It is important whether the burnout was foreseeable for the employer. It is also important whether the employee informed the employer in time about the complaints and, if so, how the employer responded.
Structural high workload
The mere fact that the employee often has to work overtime does not in itself mean that the employer is liable for the burnout. It is clear from case law that the employer can only be held liable if it was clear to him that the employee has experienced a (too) high workload and subsequently took no action. It is also important whether the employee informed the employer about the (too) high workload in good time.
Fair compensation in case of dismissal?
Another possibility to claim compensation for damages in the event of 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 seriously culpable.
For example, on 21 May 2019, the The Hague Court ruled that the employer acted seriously culpable by having the employee perform double shifts, without compensating her in free time 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 due to a disturbed employment relationship and awarded the employee a fair compensation of € 30,000.-.
Reimbursement of reintegration expenses
An employer must pay reasonable costs for the reintegration of the sick employee. Irrespective of whether the employer is liable for the burnout (or for seriously culpable acts), the employee can therefore claim reimbursement of reintegration expenses from the employer, for example for psychological help. However, the employer may also take into account the benefits that the employee can receive under insurance policies taken out for by him or herself or by the employer. In addition, the employer cannot be required to provide financial resources for reintegration processes that are clear in advance that they will not lead to the intended result. If the expenditures do not give any prospect of recovery, the employee cannot request an expense allowance from the employer.