Employer is Liable for Damage Resulting from Employee’s Psychological Complaints

An employer was held liable for the damage suffered by an employee due to absenteeism for psychological complaints as a result of an incident at work, as the employer had no policy to prevent the incident and as the employer had failed to provide sufficiently personalised aftercare.
An employee worked in the closed section of a youth mental health care centre as an educational staff member. In 2016, a resident had committed suicide there. The employee was the person who had found the resident and who, in vain, had tried to resuscitate the resident.
Following the suicide, the Youth Care Inspectorate and the Health and Safety Inspectorate had carried out an investigation. They had concluded that the institution's policy regarding prevention of suicide had been insufficient and that the employees had not adequately been trained. In the evaluation of the incident, the institution should also have involved all employees who had been involved in the suicide.
In 2018, the employee stopped working as an educational staff member.
In 2020, he held the institution liable for damages he claimed to have suffered as a result of the incident. The employer did not recognise the liability.
The psychologist treating the employee stated that the employee had developed complaints after the suicide. The employee was angry that no follow-up had been given after previous suicidal expressions by the resident. The fact that the employee had previously experienced five suicides in his circle of friends had also played a role. According to the psychologist, the employee had symptoms of a post-traumatic stress disorder, a depressive disorder, a panic disorder, agoraphobia and an alcohol use disorder.
A medical advisor, engaged by the employer and its insurance company, believed that the employee had wrongly failed to provide information from the GP, the psychiatrist and other healthcare providers. He also believed that the cause of the complaints lied in the employee's previous experiences with suicide.
In a partial dispute, the employee applied to the Sub-district Court for a declaration that the employer was liable for the employee's damage. The employee stated that the employer had violated the duty of care for safe working conditions, resting on him. The Sub-district Court inferred from the psychologist's letter, that finding the resident after the suicide had been a traumatic event for the employee and that the employee had suffered his damage as a result. According to the Sub-district Court, the fact that the symptoms mentioned by the psychologist had arisen after the symptoms had been established substantiated it.
From the employer's medical advisor’s statement the Sub-district Court inferred that, in any case, the cause of the complaints should not be found in the past only, but also in the incident during work. This made it sufficiently established that the employee had suffered the damage in the performance of his duties.
When assessing the duty of care, the Sub-district Court stated first and foremost that the duty of care is not to provide an absolute guarantee for the protection of the employee against industrial accidents, but that the duty of care must be understood in a broad sense and that it cannot be taken quickly that an employer has fulfilled its duty of care. The employer has to take such measures and give such instructions as where the nature of the work makes them indispensable to prevent an employee from suffering damage in the performance of his work. According to the Sub-district Court, the employer had not fulfilled this requirement. The investigation by the Health and Safety Inspectorate had shown that there was no policy on the prevention of suicide and that the employees had not been trained appropriately. Precisely because suicide had a low prevalence rate in the institution, it was highly likely that the employees did not really know how to act. Another relevant factor was the fact that the institution more frequently experienced more complex psychiatric problems.
The employer had also failed to adequately monitor the employee's well-being after the suicide. Even though a memorial service had been held and victim support had been engaged, there was no employee-tailored, structured and planned aftercare.
Since the employer has thus failed to fulfil its duty of care, the employer was liable for the employee's damage and the employer, or at least its insurer, was obliged to compensate for this damage.

A partial dispute is intended to already make an early decision on part of the dispute, in the hope that it will enable the parties to settle the entire dispute in an amicable way.
After the liability has been established, it may still be necessary to discuss e.g. what damage resulted from the incident which damage the employer is liable for, and the extent of the damage.
An employer's duty of care for safe working conditions goes far. Except in the seldom case that the employee's damage is the result of his/her own intent or deliberate recklessness, all the employee needs to do is to state -and if he/she challenges it: to prove- that he/she has suffered damage in the performance of his work. Then it is up to the employer to demonstrate that he did everything in its power to avoid the employee's damage. Failing this, the employer is liable for the damage. The above Sub-district Court’s decision shows that the burden of proof of the employee is not subject to high demands (Falling ill after the incident was sufficient; falling ill due to the incident apparently did not have to be demonstrated), whereas the burden of proof of the employer requires very high demands.
So as to avoid payment of potentially high compensation to employees, whereas they have not really done much wrong, it is mainly important for employers to ensure good coverage of the company's liability. Usually, the solution of the problems will not be found in the Courtroom in cases like this.