An employee of a sawmill who loses a little finger by a poorly maintained sawing machine can bring his employer to court, and has a good chance of winning the case. But what if the same employee gets a burn-out because he has to see an inhumane number of planks day in, day out? Then it is a lot more complicated.
The Occupational Diseases Office (BBZ) of the FNV trade union advises employees to hold the employer liable. "If there is a clear overload and a relationship can be established between the burn-out and the work, which means that in the event of a burn-out there are no special circumstances in the private sphere that have caused a great deal of psychological pressure "
The fact that it is rather difficult to hold employers liable in practice is demonstrated by the relatively small number of legal cases. While burn-out has been at the top of the list of occupational diseases for years, the BBZ has only observed a "limited increase" in the number of burned-out employees who want to hold an employer liable with the help of the trade union. In the past five years, there have been an average of 25 files per year.
"Making the employer liable is certainly not the order of the day." Suzanne Meijers
Employment lawyer Suzanne Meijers, also an advisor at advisory club Bye Bye Burnout, also sees "no huge increase" in the number of liability statements.
"Since 2005, a Supreme Court ruling has made it explicit that employers must prevent employees from suffering psychological damage as a result of their work. In 2007 or 2008, we see work pressure first appearing in matters involving the duty of care of the employer. But holding the employer liable is certainly not the order of the day. "
The burden of proof lies with the employer
In such cases, the burden of proof lies with the employer. He will have to prove that he has complied with his statutory duty of care. This 'reversal rule' is unique in Dutch law. However, it does not mean that employees with unfounded complaints can go to court. Meijers: "The employee must be able to prove that he has made his complaints known earlier, so that the employer was able to take measures."
And despite the reversal rule, a judge will in many cases, according to Meijers, require the employee to show that there is psychological damage and that this has been caused by the work situation. A testimony from a doctor or psychologist is not sufficient. "A judge would prefer to see an independent investigation report from an expert."
An employer must in turn be able to demonstrate that, after the employee has informed him of the complaints, he has made efforts to improve the situation. Meijers: "It is important that you get to work with it. This can be done, for example, by offering coaching to the employee or by hiring an independent counselor."
"As an employer you do not have anything to say directly about the privacy of the employee." Suzanne Meijers
Some employers try to place the responsibility for a burnout with the employee. For example, because they suspect that someone systematically goes to bed late and therefore arrives exhausted at work. That kite does not apply, Meijers says: "As an employer you do not have anything to say directly about the privacy of the employee."
Even if a judge finds in favor of an employee, it is difficult to determine the actual financial loss of a burnout. Smartengeld is exceptional in the Netherlands, unlike in the US for example. It does happen that an employee wants to leave the company after a burn-out. The burnout can then become part of the negotiation, according to Meijers. "The employee can demand that an employer pay out an amount on top of the standard transition scheme."
It goes further than a manual
Prevention is better than cure. Employers do well to pursue a policy aimed at preventing burn-outs. Take measures to prevent overloading, for example by discouraging overtime or by not expecting employees to be available around the clock.
Also with a policy against bullying and (sexual) harassment in the workplace, an employer shows that he takes his duty of care seriously. But, Meijers warns: "It goes beyond typing a handbook and putting it in the cupboard. You have to act accordingly."