The short answer is “yes”, but in practice it is quite difficult.

Employers are already quickly liable for damage that an employee suffers during work. Employers have a duty of care towards their employees and must prevent employees from suffering damage in the performance of their duties. The Dutch Supreme Court has already ruled in 2005 that an employer can also be liable for psychological damage.

In the situation that an employee suffers damage during their work, the employer has two ways to escape liability. The first is that the employer demonstrates that the damage was caused by the employee’s intent or conscious recklessness. This is not quickly assumed. In case law, there are many examples of employees who act in a way that is, to put it mildly, “not smart”, but this often turns out to be insufficient to assume conscious recklessness or intent. Even if the employer can demonstrate that they have taken all safety measures that could reasonably be expected of them and the accident could not be prevented despite this, the employer can escape liability.

An employee who wants to hold their employer liable for a burnout has a relatively heavy burden of proof. Simply stating that there is a burnout is insufficient, even if this statement is supported by a medical report. It is very possible that the burnout is the result of the employee’s own mental state or of causes in the private sphere. The employee must therefore do more than just state that they have a burnout. The employee must also address the employer’s duty of care and state and prove that it has not been met.

This means that the classic burden of proof distribution, in which the employee only has to show that they became disabled due to work, after which the employer has to prove that they have complied with their duty of care, will not be applied by the judge in the case of a burnout.

Do you want to know more about employer liability?

Contact Nejla Ugur.