This article takes a closer look at the legal considerations employers should be aware of in Belgium, the Netherlands and Luxembourg.
Belgium
Legal framework
Any accident causing an injury to an employee which occurs in the course of, and by reason of, the performance of the employment contract qualifies as an occupational accident. The same applies to accidents occurring on the way to and from work. The fatigue of the person concerned, and its cause, does not alter this qualification. The same reasoning applies if your employee has been partying all night, is not sleeping because of a newborn child or regularly suffers from insomnia. A recent study commissioned by KBC Insurance highlights the significant prevalence of sleep disorders among employees. According to that study, no less than 43% of Belgian employees suffer from such disorders, with all the imaginable consequences for their concentration, productivity and well-being.
Procedure in case of an accident
If an occupational accident occurs, you must report the accident to the insurance company with which you have taken out your mandatory occupational accidents insurance. In this respect, please note that any accident resulting in incapacity for work of at least 4 days must lead to the preparation of an occupational accident record sheet. In the event of a serious occupational accident, immediate notification must also be made to the competent regional supervision division of the Directorate-General for Supervision of Well-being at Work.
Employer obligation: protection of health and safety at work
As an employer, you are required to safeguard the health and safety of your employees. In this respect, as part of your well-being policy and ongoing risk assessment, it is advisable to address the topic of fatigue at work, in particular for positions and roles in which excessive fatigue may entail a greater risk of adverse consequences. Indeed, it is easy to understand that the consequences of excessive fatigue will not be the same for an accounting employee as for a person operating construction machinery. Once again, and as always in this area, a systematic and continuous risk analysis is key.
Key takeaway
In summary, football or no football, an accident occurring in the context of the employment contract as a result of excessive fatigue is an occupational accident within the meaning of Belgian law. The employer should therefore contact its insurer if an accident occurs and strictly comply with any applicable procedure in this respect. The start of this “nocturnal” World Cup for our latitudes serves as a gentle reminder of the need to carry out a risk analysis within your companies and to ensure, at all times, compliance with well-being at work legislation.
The Netherlands
Legal framework
Liability may arise where the following conditions are met: (i) damage has been suffered, (ii) the damage was incurred in the course of the performance of work duties, and (iii) there is a causal link between the damage and those duties. If the employer can, however, prove that the duty of care was fulfilled or that the employee acted recklessly or it was the employee’s own fault, the employer cannot be held liable.
Experience shows that proving a causal link is a delicate matter. Solely suffering an injury while performing work duties is not sufficient. For this reason, employees often choose to engage an expert to demonstrate the causal link. Furthermore, questions may arise as to what constitutes “work” and the “workplace” (for example, in cases involving accidents occurring at the workplace after working hours, during breaks, or while working from home).
Employer obligations and duty of care
An employer will have satisfied its duty of care if it has taken all measures and given all instructions that were reasonably necessary to prevent the injury. The burden lies with the employer to demonstrate, and if necessary prove, that it has complied with this duty of care. Simply providing a risk inventory and evaluation (RI&E) is in itself insufficient, as the employer must have taken concrete measures to prevent the damage. Supporting evidence can be helpful in this regard, such as statements from employees that they received specific instructions regarding their safety.
Own fault and recklessness
In its defence, the employer can argue the employee acted with intent or deliberate recklessness. In cases of recklessness, the employer must prove that the employee was aware of the reckless nature of his or her conduct immediately prior to the act. Furthermore, the employer must prove that the employee’s state of mind contributed to the damage to a significant degree. Given the high threshold for establishing recklessness or contributory negligence, this is difficult to substantiate in practice. After all, the employer must take into account errors of judgment on the part of its employees, and conduct that is merely careless or negligent will generally be insufficient. If an employee has watched a soccer game late into the night and is, for example, more tired as a result, this does not automatically mean that the employee is at fault if a workplace accident occurs the next day.
Key takeaway
Since liability for employers regarding workplace accidents is based on fault-based liability, the employer cannot be held liable as long as the duty of care is fulfilled. Employers would therefore be well advised to verify that they are complying with this duty, especially given that a defence based on the employee’s own fault or recklessness will generally not be effective.
Luxembourg
Legal framework
Under Luxembourg law a work accident is defined as one that has befallen an insured person as a result of their work or in the course of their work, whatever its cause. Case law further states that a work accident is any event that occurs suddenly in the course of work and which results in bodily injury.
Under Luxembourg law the employer is required to take preventive measures to ensure the health and safety of their employees. However, a work accident may occur despite the preventive measures taken by the employer. Whether or not the employer is at fault, the civil damages suffered by the employee will be covered by the accident insurance. If the accident is due to the employer’s fault for failing to fulfil their obligations regarding health and safety at work, the employer may face criminal sanctions.
Procedure in case of an accident
The employee shall immediately notify their employer or the employer’s representative of a work accident.
The employers are subject to the following formalities:
- keeping a record of work accidents resulting in incapacity for work lasting more than three days,
- drawing up and submitting reports on work accidents to the Labour Inspectorate (Inspection du travail et des mines – ITM), and
- reporting work accidents to the Accident Insurance Association (Association d’assurance accident – AAA).
Key takeaway
In any event, the tiredness of an employee (due for instance to watching football the night before), while it could increase the risk of an accident, will not be taken into account when qualifying an accident as a work accident. The employee shall only substantiate that the accident occurred at work, during working hours.
Final global checklist
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