Mistreatment of employee by supervisor after working hours: employer not liable

Amsterdam Court of Appeal 11 August 2015.

The ruling concerns an employee working as a cleaner at Flower Auction Aalsmeer. On 29 April 2008, a brawl ensued between the employee and his supervisor after finishing work. On that day, the employee (and several other colleagues) had to be taken home by a company van after working hours. The employee pressed the horn several times as he felt it was taking too long for the van to leave. The supervisor then walked up to the employee and hit him twice on the head/right ear. The employee sustained injuries in the process. The supervisor indicated that there was only pushing and pulling.

In criminal proceedings, the police judge ordered the supervisor to pay a fine of €350 and damages to the employee in the amount of €389.06 for the material and immaterial damage suffered. Subsequently, the employee initiated civil proceedings against both the employer and the superior. The employee claimed an advance on damages of €25,000. This was rejected by the subdistrict court, after which the employee appealed.

The Amsterdam Court of Appeal agreed with the subdistrict court. Based on the law, the employer must create a safe working environment. If a fellow employee commits an unlawful act like this, and the employer could not have foreseen that this would happen and therefore could not have taken measures to prevent it, the employer is not liable for this. The mere fact that it involved a manager does not mean that it can be attributed to the employer. The fight took place outside working hours and not on the employer's shop floor. The claim was therefore dismissed. The employee also claimed damages because in both the years before and after the brawl he "under extremely unpleasant conditions" had to work under a supervisor who mistreated him and that there would be negative record keeping after the brawl. According to the court, this is not established. This claim is also dismissed.

TIP: One swallow does not make a summer. Of course, this ruling does not mean that in cases of mistreatment by a supervisor or colleague, employer liability can never arise. Should the employer, in his duty of care for a safe working environment, nevertheless be culpable, the outcome will be different.