Many companies regularly use temporary workers to cope with temporary peaks in workload or for specific projects. Temporary workers offer flexibility, but their position also raises special legal issues, especially when a company accident occurs. In such cases, the question arises as to who is responsible for the damage suffered by the temporary worker: the employment agency or the borrower, the company where the temp works? This article offers a comprehensive analysis of liability in company accidents with temporary workers, with a focus on the care responsibilities of both the formal and material employer.
What is the relationship between the temporary worker, the employment agency, and the borrower?
There are three parties involved in temporary work: the temporary worker, the employment agency, and the borrower (the company where the temp actually works). The temp is formally employed by the employment agency, but works under the daily guidance and supervision of the borrower. This situation leads to a complex legal issue if an accident occurs at work. The question then asked is: who is liable?
Formal employer versus material employer
The formal employer is the employment agency, as the employment contract between the temp and the employment agency was concluded. The employment agency pays the wages and is responsible for administrative matters such as deducting income tax and premiums. The material employer, on the other hand, the borrower, is the company that actually supervises the temp and for which the work is being done.
Liability of the borrower according to article 7:658 BW
Article 7:658 of the Civil Code places the duty of care with the employer (in this case the borrower) to ensure a safe working environment. This means that the borrower is obliged to take all necessary measures to prevent accidents. This obligation applies to both its own employees and temporary workers working within the company.
If a temporary worker experiences an accident on the shop floor, the borrower can be held liable for the damage if it appears that he has violated his duty of care. The borrower must, for example, provide clear safety instructions, adequate personal protective equipment, and sufficient supervision on the work floor. Moreover, it is the responsibility of the borrower to inform temporary workers about possible risks in the workplace, as recorded in the Risk Inventory & Evaluation (RI&E).
Duty of care of the employment agency
Although the borrower bears the greatest responsibility, the employment agency also has obligations. The employment agency must ensure that the temp has sufficient information about the risks of the work. This includes that the employment agency must provide the RI&E of the borrower to the temp and must ensure that the temp is aware of the safety measures to be taken.
Example from practice: company accident at the Rotterdam court
A recent ruling by the Rotterdam court (ECLI:NL:RBROT:2023:9313) provides a good example of the distribution of liability in a company accident with a temporary worker. In this case, a temp was working as a production operator for a borrower. During his work, he was injured when a forklift truck, operated by an unqualified colleague, trapped his hand. The court ruled that the borrower was liable for the accident because he had violated his duty of care by not providing sufficient supervision and allowing inexperienced employees to operate dangerous equipment without the proper certificates.
Borrowers’ remuneration and responsibilities
From the first working day, the borrower must reward the temporary worker according to the borrower’s compensation, which means that temporary workers are entitled to the same wages and the same allowances as permanent employees within the borrower’s company. This principle, which is set out in the Collective Labor Agreement for Temporary Workers, ensures that temporary workers receive the same protection as permanent employees, including protection with regard to safe working conditions. Equating temporary workers to permanent employees strengthens the responsibility of the borrower to also instruct and protect temporary workers against work accidents.
How about liability if the duty of care is not complied with?
If the borrower violates his duty of care and a temp worker is injured, the borrower can be held liable for all material and immaterial damage suffered by the temp. The duty of care of the borrower is, however, a heavy obligation: the borrower must be able to demonstrate that he has complied with all security measures and that the accident nevertheless occurred due to circumstances beyond his control. If the borrower fails in this, he can be held fully liable.
In some cases, the employment agency can also be held liable, for example, if the employment agency has been negligent in providing information about the risks of the workplace to the temp. In practice, however, it is the borrower who bears the most responsibility for the safety of the temp during work.
Conclusion: who is liable in the event of a company accident by a temporary worker?
The liability in the event of a company accident by a temporary worker usually lies with the borrower, as he is responsible for the daily course of affairs on the work floor and must ensure that the work conditions are safe. The employment agency, however, also has a role in informing the temp about the risks in the workplace. Both parties should take their responsibility seriously to prevent the temp from taking unnecessary risks.
Do you have questions about liability in the event of a company accident, or have you been a victim of an accident at work as a temp? Please contact the personal injury lawyers of Arslan Lawyers for expert advice and legal assistance. Our specialists are ready to help you recover damages from the responsible party.
