3 August 2020

Are you liable for a burnout?

By Seliz Demirci

You have a duty of care: you must reasonably do everything necessary to prevent an employee from suffering damage during work.

Now you can expect your employees to inform you if the workload becomes too high, but it is also important to respond adequately – otherwise you may be liable for a burnout.

If an employee suffers health damage, in principle the employer must reimburse the costs. The employee must prove that there is a causal link between their work and the damage. This can be difficult in practice, but if the employee can demonstrate that:

  1. the working environment was unhealthy;
  2. s/he has suffered health damage that can be caused by this;
  3. the employer has not taken measures that are reasonably necessary to prevent the damage,

Then it is in principle assumed that the damage was caused by the work (the so-called “reversal rule”). This does not apply if the relationship between health damage and work is too uncertain.

The District Court of Rotterdam had to judge a situation in which an employee systematically argued that he worked a lot of overtime and intercontinental flights. This was established for the period from 2001 to 2006. From 2007 to 2011, the employee was absent several times for a longer period due to illness. From 2008, however, the employee no longer worked overtime and his request to travel less was honoured. When the company doctor indicated in 2011 that intercontinental flights might become too burdensome, the employee’s position changed. According to the employee, this meant a heavier burden, but the court did not consider this sufficiently proven.

Causality

The question was whether the structural overtime in 2001-2006 had led to a burnout and a permanent dropout in 2015. The court indicated that psychological complaints are often due to multiple causes and that this differs per individual. In this case, the employee also suffered from a chronic condition that was separate from the employment relationship. The employer had asked for medical documents several times, but the employee did not respond to this.

The judge therefore ruled that it was not certain that the final dropout in 2015 was caused by structural overtime from 2001 to 2006. There was a gap of ten years. In addition, it could not be excluded that the burnout was caused by non-work-related factors. It was therefore too uncertain whether there was a link between the damage and the working conditions. As a result, the employee could not use the reversal rule and had to provide the proof himself. He was not given the opportunity to do so because the judge ruled that the employer had complied with their duty of care, in which case the employer is not liable.

The level of the position can also be important

In the above statement, the level of the position was important. At the start of the employment contract, the employee knew that he would have to travel abroad regularly for work. He had a lot of responsibility within his position and received a high salary (over € 138,000 gross per year). In addition, the employee himself had chosen to have the overtime paid out, while this could also be compensated via time-for-time. Moreover, the employer, insufficiently contradicted by the employee, stated that the number of working hours was usual in that sector and at that level. In addition, given the position of the employee, he could be expected to indicate that the workload was too high. He had failed to do that. The company doctor’s reports further showed that the employer had fulfilled his reintegration obligations by responding to the employee’s signals.

Signals

If you receive signals from an employee that may indicate a burnout, it is important to take this seriously. Talk to the employee and make agreements together to reduce the workload. Support the employee where possible.

If you have a question, please do not hesitate to contact me.

 

 

This article originally appeared in Rendement.

Rotterdam District Court, April 3, 2020, ECLI: NL: RBROT: 2020: 3000

Seliz Demirci

Seliz Demirci

Lawyer

Within the Employment & Pension law section, Seliz advises national and international employers and employees on various employment law issues.

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