Employer liability in the event of burnout in Holland
According to Article 7:658(2) of the Dutch Civil Code (BW), an employer is liable for damage (burnout) suffered by an employee during work, unless the employer can prove that it has fulfilled its duty of care or that the damage was caused by the employee’s intent or deliberate recklessness. The Dutch Supreme Court has ruled that this article also applies to psychological damage, such as burnout. Our Amsterdam-based lawyer specialising in Dutch employment law, Paul Snijders, provides further information on this subject.Â
Burden of proof for the employee in the event of burnout
However, it can be difficult for an expat employee to prove that the damage (psychological damage or burnout) was caused by work, especially in the case of occupational diseases such as burnout. That is why the Dutch Supreme Court introduced the reversal rule in employment law. This means that the employee must first prove that the damage occurred during work. If this is proven, the employer must prove that it has fulfilled its obligations.
Exceptions to the reversal rule
This rule does not apply if the link between the damage and the working conditions is too uncertain. In that case, the employee in The Netherlands must prove that the damage was caused by work.
Multifactoriality of psychological complaints
Psychological complaints such as burnout can be caused by multiple factors, including personal circumstances. Therefore, the employee must also demonstrate that the complaints were caused by the work and not by something else.
Strict requirements for evidence psychological damage in The Netherlands
Case law imposes strict requirements on the evidence of a link between work and illness, especially in cases of burnout. It is often more difficult to prove the causal link in cases of psychological injury than in cases of physical injury.
The strictness of the Dutch courts can be found in ECLI:NL:GHARL:2024:7035:
“Burnout is a multi-causal occupational disease, the cause of which may also (partly) lie in circumstances that fall within the employee’s private sphere, such as his personal predisposition or other circumstances not related to work. In this case, no investigation was conducted (…) The file does not contain a GP’s journal showing this diagnosis (…) It was incumbent on [the appellant] to provide concrete evidence of the duration of the burnout and the extent to which the current incapacity for work is related to it (…) It is incumbent on [the appellant] to provide sufficient facts and circumstances relating to his work situation on basis of which it can be assumed that and to what extent his complaints were caused by his work and not by something else (…) In view of Achmea’s substantiated objection, it has not been established that [the appellant] structurally worked more hours per week than is appropriate for a full-time working week and that there was a pattern of increasing work pressure over a number of years, which led to work being carried out from early in the morning until late in the evening or even at night. It was incumbent on [the appellant] to substantiate his assertions (…) The overviews he drew up of the work he performed do not provide any insight into his workload, because it has not been stated, let alone substantiated, how much time was spent on the various activities (…) In view of his position, [the appellant] could also have been expected to report any problems with his workload. There is no evidence that he did so (…) Nor was any (medical) examination carried out (…) That conclusion is meaningless where no investigation has been carried out into factors relating to the personal predisposition of the appellant or into psychosocial factors outside work.
Seek advice from an employment law solicitor in Amsterdam in case of psychological damage
In short, if you want to hold your employer liable if you are unable to work due to a (mental) occupational illness such as burnout, you will first need to gather sufficient (medical) evidence to prove that the illness was caused exclusively by your work.
Contact a solicitor in Amsterdam about employer liability in the event of burnout
Are you looking for commitment and direct, personal contact with an experienced specialist in employment law in Amsterdam, Holland? Call our specialised lawyers in employment law and dismissal law for questions and legal advice on employment law, such as employer liability in the event of burnout.