Employer liable for employee burnout?

Amsterdam Court of Appeal 20 September 2011 and The Hague Court of Appeal 27 September 2011

Within a week, two Courts of Appeal have ruled on an employer's liability for employee burnout. One Court finds the employer liable, the other Court does not. What is the difference between the two cases?

The case before the Amsterdam Court of Appeal involved an employee who worked at ABN AMRO in the Global Business Support department. At one point, his supervisor was absent for a long period of time due to maternity leave. During this period, the employee assumed her managerial duties which, due to understaffing and conflict situations with subordinates, started to weigh heavily on this employee. Eventually, the employee dropped out due to burnout.

The case before the Court of Appeal in The Hague concerns a nurse who was working in the emergency room (SEH) department at Rivas hospital. One day, the nurse fainted at work. The GP found that she had collapsed due to high workload. The company doctor diagnosed burnout. The nurse filed a complaint about structural understaffing with the Labour Inspectorate, which found that too little attention was paid to work pressure problems.

In both cases, the employees held their employer liable for their health injuries. The Amsterdam Court of Appeal ruled that the employee did not make it sufficiently plausible that his health complaints were caused by the work. The employee did not show what specific working conditions led to his complaints. And that there was understaffing is insufficient, according to the Court, as this situation did not lead to structural overtime. There was no further evidence that the employee had previously complained about work pressure or understaffing. It was therefore not apparent to ABN AMRO that the working conditions were threatening the employee's health. ABN AMRO is therefore not liable.

The Court of Appeal of The Hague ruled that it could (well) be established with sufficient certainty that the nurse's medical complaints were work-related. It is established that she has had to work under high pressure for a long time and that she suffers from burnout. High work pressure in an emergency room is further a cognisable health risk for nurses. Moreover, the nurse made this known to the hospital several times. The hospital did not respond adequately to this and the court therefore ruled that it had failed in its duty of care. The hospital is therefore (well) liable.

In the case at the Amsterdam Court of Appeal, it was not established that the burnout was caused by work pressure problems. This is in contrast to the case at the Court of Appeal in The Hague. In our opinion, however, the main difference between the two cases is that the employee in the case against ABN AMRO did not complain (several times) explicitly to the employer about the pressure of work, as a result of which this health risk was not apparent to ABN AMRO and was apparent to the Rivas hospital.

Tip: Employer liability for burnout is not easily assumed. When burnout is imminent, we advise the employee: report the overwork frequently and in writing to the employer. Should this not help to improve the work situation, the employee will at least build up a claim file in case things go wrong.