MAAK Attorneys in the Netherlands has noticed that many manufacturing companies face challenges in the area of occupational health and safety legislation and the related liability issues. How do I map out the risks regarding employer’s liability? What should I do in the event of an industrial accident? How do I communicate with the supervisor? MAAK’s attorneys in the Netherlands help players in the manufacturing industry with these questions. Paul Otto discusses the most important insights for the manufacturing industry.
Last week was all about the employee. 28 April is the ‘Day for Safety and Health at Work’, which draws attention to occupational safety. 28 April is also Workers’ Memorial Day, which commemorates victims of industrial accidents. 1 May is Labour Day, which – in short – is all about fair terms of employment and good working conditions. All the more reason for us to put our pens to the wheel and explain once again what is expected of an employer under the Working Conditions Act (Arbowet) and the Working Conditions Regulations.
The Working Conditions Act enshrines the right of employees to a safe and healthy workplace. The primary responsibility for setting up a workplace lies with the actual employer. He is obliged to pursue a health and safety policy aimed at protecting the health and safety of employees. This applies to salaried employees, but also to self-employed workers, temporary workers and apprentices.
WHAT IS THE Dutch DEFINITION OF EMPLOYER’S LIABILITY?
Employer’s liability is in the Netherlands defined as being liable for the damage suffered by an employee in the performance of his or her duties. Article 7:658 BW is one of the key articles in this respect. The employer is obliged by law to furnish and maintain the premises, equipment and tools in which or with which the employee performs the work in such a way, as well as to take such measures and provide such instructions for the performance of the work as are reasonably necessary to prevent the employee from suffering damage in the performance of his work.
Working conditions policy
The Working Conditions Act first requires a sound working conditions policy. The aim is for the employer to ensure the safety and health of employees in all aspects related to work.
Risk Inventory & Evaluation (RI&E)
Firstly, an inventory of the risks associated with the work has to be made. The Working Conditions Act stipulates that an employer is obliged to draw up a written RI&E. The RI&E describes the risks associated with the work and formulates control measures to limit the risks identified.
The employer must involve a delegation of employees in the process. As a rule, the employer must be assisted by a health & safety expert in assessing the RI&E. For companies with fewer than 26 employees, the assistance of a health & safety expert is not required under specific conditions.
When determining measures to reduce the identified risks, the employer must take into account that there is a legally compulsory sequence of preventive measures. Only if a ‘higher’ measure is not possible or cannot be required from the employer, will a ‘lower’ measure suffice. The control measures should be taken in this order:
- fight dangers at their source
- take collective protective measures
- take individual protection measures
- provide personal protective equipment
On the basis of the RI&E, a plan of action is usually drawn up, on the basis of which the health and safety policy is implemented in the company.
Because compliance with occupational health and safety legislation is a permanent obligation, the periodic evaluation and adjustment of the policy is important.
Assistance by skilled workers and experts
In order to comply with Dutch labour legislation, the employer in the Netherlands must be assisted by one or more employees who are experts in the field of prevention and protection. Examples are the ‘prevention officer’ and the ‘in-house emergency response team’. If there are no employees with the required expertise in the company, the missing expertise must be filled in by external experts. These include the ‘company doctor’ and an ‘occupational health and safety service’ to assist sick employees.
It is important that the persons concerned have the right certificates. Such certificates form an important tool for demonstrating expertise.
In companies with no more than 25 employees, the entrepreneur may perform the tasks of the prevention officer himself, provided he is sufficiently competent to do so.
Information and training
An important element is the information and training of workers. The employer must ensure that the employees are effectively informed about and adequately trained for the work, the associated risks and the measures to limit these risks. It is important to be able to demonstrate this.
The employer must also ensure compliance. Where employees do not follow the safety measures, consistent and adequate intervention is required to enforce compliance with safety rules.
The Working Conditions Decree (Arbobesluit) and the Working Conditions Regulation (Arboregeling) contain further rules that give a more concrete interpretation of the employer’s duty of care. The subjects vary widely, from safety requirements for machines to monitor settings.
Furthermore, the employer’s duty of care is further and more concretely coloured by any applicable NEN standards. Machinery, protective mechanisms, personal protective equipment, rolling stock and other equipment used in the performance of the work generally fall within the scope of specific NEN standards.
The Health and Safety Catalogue
Agreements on the implementation of the Working Conditions Act can also be laid down in a Health and Safety Catalogue (generally) drawn up for the sector. A health and safety catalogue describes how employers and employees comply with the statutory target requirements for healthy and safe working. This can be an important tool for employers to shape their working conditions policy.
Recording and reporting of occupational accidents
In the event of an accident at work, it is important for the employer to deal with it properly. Accidents at work that have led to an absence of more than three working days must be registered internally.
Accidents at work with far-reaching consequences (hospitalisation, permanent injury, death) must be reported by the employer to the Dutch Labour Inspectorate. It is important to realise that the Dutch Labour Inspectorate also receives signals of serious occupational accidents in other ways. Failure to report the accident can result in a significant fine for the employer.
Assistance in case of occupational accidents
After serious accidents, there is a lot on the employer’s mind. As a rule, a serious accident in the workplace is followed by an investigation by the Dutch Labour Inspectorate. Maak Advocaten can assist you in this process. After the immediate assistance and care for the other staff, it is advisable to get in touch as soon as possible, because it is precisely in the first hours and days after the industrial accident that a lot is asked of you.
DAMAGE TO THE EMPLOYEE AND LIABILITY OF THE EMPLOYER in the Netherlands
If an accident at work has taken place, the damage of the employee and the liability of the employer are at stake. In essence, a distinction must be made between two forms: civil liability and criminal liability. In addition, there may be administrative law enforcement.
Dutch CIVIL LIABILITY TOWARDS THE EMPLOYEE
The employer is liable towards the employee for damages suffered by the employee in the performance of his or her duties if the employer has not fulfilled his or her duty of care towards the employee (Article 7:658 of the Civil Code). The employer must demonstrate that he or she has fulfilled the duty of care.
An exception is the situation where the damage is the result of deliberate or consciously reckless action by the employee. In practice, this is not often the case.
The liable employer must compensate the employee for the actual damage suffered. This can be very substantial. Therefore, an employer is well advised to have a liability insurance that also covers employer’s liability.
In case of fatal accidents at work, an investigation by the Dutch labour inspectorate will take place and the employer must assume that a criminal investigation by the public prosecutor will follow.
The employer – who may be a legal entity – is usually regarded as a suspect of a violation of Article 307 of the Criminal Code (culpable homicide) and Article 32 of the Working Conditions Act (punishable under the Economic Offences Act). In short, the employer is then blamed for the employee’s death and for failing to take action to prevent or limit the risks and dangers associated with the work.
If the Public Prosecutor believes that the facts and evidence warrant prosecution, the case will generally be brought before a judge.
Case law shows that, as a rule, the employer in the assessed cases had not carried out a complete RI&E, the employee had not been given sufficient information, there was insufficient supervision by the employer and the materials used did not meet the requirements.
If the court finds that the offence has been proven, a penalty will be imposed. If the employer is a legal entity, a substantial criminal fine will usually be imposed as a penalty.
Accidents at work without fatal consequences can lead to criminal prosecution. In certain ‘lighter’ cases, it may be that the Public Prosecutor’s Office itself settles the criminal case by proposing an order for punishment. By accepting the penalty, the guilt is established.
In practice, a non-fatal accident at work with limited injuries does not usually lead to criminal prosecution by the Public Prosecution Service. This has been laid down in more detail in the Enforcement Instructions for the Working Conditions Act. If the occupational accident is attributable to the employer, an administrative fine of the Dutch Labour Inspectorate and civil liability regularly follow.
Administrative fine and preventive enforcement
The Dutch Labour Inspectorate can take enforcement action both without and after an accident. If an accident at work has taken place and this is partly due to the employer not complying with the working conditions legislation, an administrative fine will be the obvious choice. If the Dutch Health and Safety Inspectorate acts preventively, it will often opt for a warning or a penalty payment in order to induce the employer to comply with the working conditions legislation. In case of serious or repeated violations, the Netherlands Labour Inspectorate will (be able to) impose a fine.
The Dutch Labour Inspectorate is the supervisor in the Netherlands regarding compliance with occupational health and safety legislation and the investigating authority in the event of accidents at work. For some aspects and workplaces, other supervisors are (co-)competent. Should you, as a company, have to deal with an enforcement issue by the supervisor, our lawyers will be pleased to advise and support you.
CONTACTING A Dutch lawyer SPECIALISED IN EMPLOYER’s LIABILITY
Do you have a question about health & safety legislation or employer’s liability in the Netherlands? Did you have to deal with an accident at work? Our Dutch lawyers and legal counsels for employers’ liability law in Amsterdam will be pleased to help you. Please contact us for more information.
Contact persons: Remko Roosjen and Paul Otto