- With a workplace accident as an agency worker you can hold both the employment agency and the hirer liable.
- The employer’s duty of care is laid down in article 7:658(4) of the Dutch Civil Code, with specific rules for agency workers.
- Heads of loss include medical costs, loss of income, domestic help, compensation for pain and suffering and more.
- Liability is often apportioned between the employment agency and the hirer, depending on the situation.
- After an accident it is crucial to report it, seek medical help, gather evidence and instruct a personal injury lawyer.
- Arslan Advocaten offers specialised legal assistance free of charge with workplace accidents for agency workers.
Introduction: a workplace accident as an agency worker in perspective
A workplace accident involving an agency worker is often a complex legal situation that calls for clarity about liability and the recovery of loss. Agency workers have a special position within employment law, because they are officially employed by the employment agency but carry out their daily work at a third party, the hirer. That raises questions: who is liable for a workplace accident, the employment agency or the hirer? In this article we explain the legal frameworks, discuss the differences in liability, give examples from practice and guide you step by step through the process of claiming after a workplace accident.
The legal basis: liability under article 7:658(4) of the Civil Code
Dutch law makes employers responsible for a safe working environment. Article 7:658 of the Civil Code governs that duty of care. For agency workers there is a specific provision in paragraph 4 of that article:
“The hirer of an employee who is placed at its disposal under an agency employment contract is liable towards that employee for loss suffered as a result of an accident at the workplace, unless the agency undertaking is liable.”
This means that the hirer (the company where you work) is primarily liable for loss caused by a workplace accident. The employment agency can, however, also be liable, for instance where it has not met its duty of care, such as giving sufficient instructions or selecting a safe workplace. This shared liability makes it complex for agency workers to obtain their rights.
Differences in liability between the employment agency and the hirer
The duty of care and liability are divided between two parties:
- The hirer: has actual control over the working conditions. That company must provide a safe workplace, adequate instructions and supervision of compliance with safety rules. Is the workplace unsafe, or has there been negligence in providing protective equipment? Then the hirer is usually liable.
- The employment agency: has a duty of care to ensure a safe match. That means the agency must check whether the agency worker is suitable for the work, must provide sufficient instruction and must intervene in unsafe situations. The employment agency can be liable where it neglects its responsibility, for instance with insufficient information or by sending someone without the right experience.
So the statute recognises a shared liability, in which practice often looks at who fell short in their duty of care. Where there is doubt, it is advisable to instruct a specialised personal injury lawyer who can get to the bottom of this complex apportionment of liability.
Examples from practice of workplace accidents involving agency workers
For a better understanding of liability we discuss a few examples from sectors in which agency workers often work:
- Construction: an agency worker falls from scaffolding because the hirer did not provide a sound scaffolding structure or fall protection. The hirer is liable, but if the employment agency gave no instruction about working safely at height, the agency can be liable too.
- Logistics: while loading goods an agency worker is trapped between forklift trucks. If the hirer set insufficient safety rules, it is liable. If the employment agency had not warned the agency worker about working with dangerous machinery, the agency can be liable as well.
- Production: an agency worker injures their hand operating a machine without a guard. The hirer must provide safe machinery and give instruction. If that is missing, the hirer is liable. The employment agency can also be liable if it did not check whether the agency worker had sufficient experience.
The psychological impact of a workplace accident as an agency worker
Besides the physical consequences, a workplace accident as an agency worker can also have serious psychological consequences. Agency workers often experience extra stress because of the uncertainty about their job after an accident. Fear of dismissal, loss of income and the absence of a permanent contract increase the mental pressure. That can lead to:
- Stress and anxiety symptoms
- Feelings of depression
- Sleeping problems
- Post-traumatic stress (PTSD) after a serious accident
This psychological loss can also fall within the heads of loss and can sometimes give a right to compensation for pain and suffering. It is therefore essential to have these aspects recorded and claimed as well.
A fuller explanation of the heads of loss with a workplace accident as an agency worker
After a workplace accident you can claim various heads of loss. These can be divided into material and non-material loss:
1. Medical costs
These include all costs directly connected with the accident, such as:
- Visits to the GP, specialist treatment, hospital admissions
- Operations and rehabilitation
- Medication and aids (crutches or braces, for instance)
- Physiotherapy and psychological support
- The deductible and other care costs
2. Loss of income
During illness agency workers often receive 70% of their pay through the employer. The difference between the full pay and that 70% can be claimed as loss. In addition, if the accident makes you wholly or partly incapacitated for work, future loss of income can also be compensated.
3. Domestic help and care
If your injury means you cannot look after the household or provide informal care yourself, you can claim the costs of help. For instance:
- Hiring domestic help
- Help with shopping and providing meals
- Care costs for personal care
4. Travel costs
Travel costs to treating practitioners, therapists and the hospital can likewise be reimbursed.
5. Compensation for pain and suffering
Compensation for pain and suffering is compensation for non-material loss such as pain, grief, fear and loss of enjoyment of life. With workplace accidents the amounts often lie between € 5,000 and € 50,000, depending on the seriousness of the injury and the impact on daily life. For instance:
- An agency worker who is left permanently disabled by a fall may be entitled to € 25,000 to € 40,000 in compensation for pain and suffering.
- With temporary, less serious injuries the amount usually lies between € 5,000 and € 10,000.
The step-by-step plan after a workplace accident as an agency worker
After an accident it is important to proceed in a structured way. Follow these steps to safeguard your rights and recover your loss to the fullest:
Step 1: report the accident immediately
Report the accident to your manager or your contact at the employment agency as soon as possible. Make sure a written accident report is drawn up. That is crucial evidence for your personal injury claim.
Step 2: seek medical help
Go to the GP or the hospital at once, even if you think the injury is not that bad. A medical record is indispensable for the legal process.
Step 3: gather evidence
Take photographs of the accident site and of any defects or unsafe situations. Note down the names and contact details of witnesses who saw the accident.
Step 4: check whether the accident has been reported to the Netherlands Labour Authority (formerly the SZW Inspectorate)
With serious accidents the employer must report it to the Labour Authority. Check whether that has been done, because it can be relevant to the question of liability. You can find more information about this on our page reporting a workplace accident to the Labour Authority.
Step 5: instruct a personal injury lawyer
Instructing legal assistance as soon as possible increases the chance of full compensation. Our lawyers at Arslan Advocaten guide you from start to finish. Read more about our services on personal injury.
Step 6: submit the claim
Your lawyer draws up a detailed claim setting out all the heads of loss. The employer’s insurer will assess that claim and make a proposal. If necessary we litigate to obtain your rights.
Why Arslan Advocaten is your best choice
Arslan Advocaten has extensive experience with workplace accident cases involving agency workers, including in Rotterdam, Amsterdam and The Hague. Our expertise extends across various sectors, including construction, logistics and production. We:
- Understand the complex apportionment of liability between the employment agency and the hirer
- Handle your case carefully, with attention to both physical and psychological loss
- Gather and analyse evidence for a strong claim
- Fight for fair compensation, including compensation for pain and suffering
- Offer legal assistance free of charge thanks to reimbursement by the insurer (article 6:96 of the Civil Code)
Would you like to know how we can help you? Read more about personal injury in your region: personal injury Rotterdam, personal injury Amsterdam or personal injury The Hague.
Frequently asked questions about a workplace accident as an agency worker
1. Who is liable for a workplace accident as an agency worker?
The hirer is primarily liable, but the employment agency can be liable too where it does not meet its duty of care. Liability is often shared, depending on the circumstances.
2. Can I get compensation for pain and suffering as an agency worker?
Yes, compensation for pain and suffering is intended to compensate the non-material loss, such as pain and suffering. The amount depends on the seriousness of the injury and the impact on your life. For examples see our page compensation for pain and suffering with a workplace accident.
3. How long does it take to claim loss after a workplace accident?
The statutory limitation period is five years from the moment you are aware of the loss. It is, however, sensible to seek legal advice as soon as possible in order to secure evidence and act in good time.
4. Can the employment agency dismiss me if I bring a claim?
No, your employer may not dismiss you because of a claim. Moreover the employment agency is insured for situations of this kind and will have no interest in ending your contract over a claim.
5. What does instructing a personal injury lawyer cost?
Where liability is admitted, the costs of legal assistance are paid by the employer’s insurer. So you run no financial risk. Read more about our services on our contact page.
Read also
- Complete guide to workplace accidents and personal injury
- Workplace accident for a self-employed person or freelancer: compensation
- Incapacitated for work after a workplace accident? Work-capacity benefit and reintegration
Contact Arslan Advocaten without obligation if you have been involved in a workplace accident as an agency worker. We assess your case free of charge and help you safeguard your rights and claim the maximum compensation.
Need help from a lawyer?
Our lawyers specialise in personal injury and employment law. Get in touch with our Rotterdam office, The Hague office or Amsterdam office for a free intake conversation.