An increasing number of employees experience psychological injury caused by work. Think of burnout, severe stress-related symptoms, anxiety disorders or depressive symptoms. This often raises the question: can I hold my employer liable for psychological injury?
The answer is nuanced yet clear: yes, you can. The law protects employees against psychological injury arising from work, provided certain conditions are met. In this article we therefore explain step by step when your employer is liable, what evidence matters and what damages you can claim.
Psychological injury caused by work: what does that mean?
Psychological injury is injury that is not physically visible, but manifests as mental or emotional symptoms. In practice it often concerns:
- burnout or overstrain;
- chronic stress-related symptoms;
- anxiety or panic disorders;
- depressive symptoms;
- post-traumatic stress symptoms (PTSD).
These complaints can have major consequences for your functioning, your private life and your income. That is precisely why it is important to know your rights.
Legal basis: Article 7:658 BW
The ability to hold an employer liable for psychological injury is based on Article 7:658 BW (Burgerlijk Wetboek, Dutch Civil Code). This article obliges the employer to ensure a safe working environment.
That duty of care concerns not only physical safety, but also psychological safety. An employer must therefore take measures to prevent employees from sustaining psychological injury through their work.
More general information about personal injury at work can be found on our workplace accident page.
When is an employer liable for psychological injury?
An employer is liable when it has breached its duty of care. Concretely, this means that:
- you have suffered psychological injury;
- that injury arose from or during your work;
- the employer cannot show that it took the measures that were reasonably necessary to prevent that injury.
Importantly, as an employee you do not have to prove what the employer did wrong exactly. You primarily have to make it plausible that your complaints are work-related.
Common causes of psychological injury at work
In practice we see that psychological injury often arises from a combination of factors. Think, for example, of:
- structurally excessive workload;
- insufficient rest or recovery time;
- boundary-crossing behaviour or intimidation;
- poor guidance or lack of support;
- unclear expectations or ongoing conflicts;
- prolonged exposure to stressful situations.
When an employer ignores warning signs and fails to take measures, liability can arise.
Burnout and employer liability
Burnout is one of the most common reasons to hold an employer liable for psychological injury. That does not mean that every burnout automatically leads to liability.
Decisive is whether the employer knew, or ought to have known, that the workload was too high and nevertheless failed to take appropriate measures. Think of adjusting duties, providing support or intervening in time in case of overwork.
Burnout, PTSD and an insurer that says it is ‘private’
With burnout, the emphasis is usually on the workload over a longer period and on the signals the employer received. With PTSD after, for example, a robbery or aggression at work, the specific incident is central, together with the question whether the employer was prepared for a known risk of aggression. Aggression and violence are part of the psychosocial workload the employer must address under the Working Conditions Act.
If the employer or its insurer rejects your claim because your symptoms are said to be ‘private’, ask for the concrete reasoning and compare it with your own timeline of work and health. Other causes are not ignored; the question is which part of the consequences can legally be attributed to the work.
Burden of proof: what must you demonstrate?
In cases of psychological injury, evidence plays an important role. You must make it plausible that your complaints are related to your work. You can do so, for example, with:
- medical reports from your GP, occupational physician or psychologist;
- records of conversations with managers;
- emails or messages about workload;
- witness statements from colleagues;
- RI&E reports or internal notifications.
If you succeed, it is then up to the employer to prove that it took sufficient measures. Where your symptoms may also have causes outside work, the link with the work must not be too uncertain or indeterminate; an assessment by a medical expert is then often needed (Supreme Court 7 June 2013, ECLI:NL:HR:2013:BZ1717).
When is the employer not liable?
An employer can avoid liability when it demonstrates that it has fulfilled its duty of care. In addition, liability may be absent in case of conscious recklessness by the employee.
However, conscious recklessness is interpreted strictly. Inattention, stress, or persevering despite complaints usually does not fall within this.
What damages can you claim?
If you hold your employer liable for psychological injury, you can claim various heads of loss.
Material damages
- medical and treatment costs;
- travel expenses;
- costs for counselling or therapy;
- costs for domestic help.
Loss of income
In case of absence or reduced employability, loss of income may arise. Loss of earning capacity may also be eligible for compensation.
Keep your medical information under control. The company doctor (bedrijfsarts) advises on your capacity for work and work-related risks; your GP or therapist records diagnosis and treatment. Your employer is not entitled to your whole medical history: in principle it only hears from the company doctor what you can and cannot do, not your diagnosis. For a damages claim, targeted medical information may be needed; that is exchanged through a medical adviser, with your consent. Reintegration and a damages claim have different functions. Make sure work agreements match your medically assessed capacity, and keep written records of adaptations and of any disagreement about suitable work.
Pain and suffering damages (smartengeld)
In addition, you may be entitled to pain and suffering damages. This compensation concerns pain, distress and impairment of your quality of life. You can read more about this on our page pain and suffering in personal injury.
What should you do in case of psychological injury caused by work?
When you experience psychological complaints due to your work, it is important to act in time. That prevents evidentiary problems and further damage.
- see your GP or occupational physician;
- have your complaints recorded in medical records;
- discuss your situation with the employer;
- keep relevant communications;
- obtain legal advice.
Make your file concrete
A statement that your work was stressful says little on its own. Record your tasks, hours, staffing, deadlines and incidents with dates, and keep rosters and messages. Distinguish normal periods from exceptional peaks. Note when you reported problems, to whom, and what help you asked for, and keep meeting notes and the measures the employer actually offered. An accurate file contains both what the employer failed to do and the steps it did take.
Whether the employer knew or should have known of the risk can be decisive. A single general message that you were busy is not the same as a concrete warning about your health or about demands you could not meet. In the case of aggression or harassment, keep the incident report and earlier reports, and describe what you observed yourself rather than conclusions about another person’s motives.
You can also find more practical information on our personal injury lawyer page.
Will legal assistance cost me money?
The first consultation is free of charge. If the employer is liable, the reasonable costs of legal assistance can in principle be recovered from the employer or its insurer (Article 6:96(2) of the Dutch Civil Code). That is not a guarantee: as long as liability has not been established, or in court proceedings, other rules apply, so we discuss the cost arrangements with you in advance.
Why choose Arslan Advocaten?
Psychological injury cases are legally and medically complex. We have extensive experience holding employers liable for psychological injury and know which evidence is decisive.
In addition, we communicate clearly, think pragmatically and substantiate every head of loss.
More general information about employment law and liability can be found at the Government of the Netherlands.
Would you like to know whether you can hold your employer liable for psychological injury? Feel free to contact us for a no-obligation assessment of your situation.
Read also
- Causation in medical errors: how do you prove that your damage results from the error?
- Claiming personal injury: how does it work and what are you entitled to?
- Holding someone liable in a personal injury case
- Occupational disease: when is the employer liable?
Frequently asked questions
When can I hold my employer liable for psychological injury?
You can hold an employer liable if it has breached its duty of care by taking insufficient measures to prevent psychological injury, and your complaints are work-related. It is important that you make it plausible that the injury arose from your work.
Which circumstances can lead to my employer’s liability?
Liability can arise in factors such as high workload, lack of rest, intimidation, poor guidance, unclear expectations or prolonged stress. If your employer ignores warning signs and does not take appropriate measures, that can lead to liability.
What do I have to prove to hold my employer liable?
You do not have to show exactly what the employer did wrong, but you do have to make it plausible that your psychological complaints are work-related. It is then up to the employer to show that it fulfilled its duty of care. Demonstrating that the injury arose from the work is therefore essential.
What types of psychological injury can I claim from my employer?
You can claim psychological complaints such as burnout, stress, anxiety, depressive symptoms or PTSD, which can have major consequences for your functioning and private life. It is important that these complaints are related to your work.
