The case
In 2011, a woman started working as a doctor at a large mental health institution. Two years later she starts a postgraduate course in addiction care. For this she will receive a training place within the same mental health institution at an addiction care location. After just two weeks, she asks the program director if the collaboration with her supervisor can be discussed. Several conversations follow between three and a few months later, in January 2014, she receives an assessment from her supervisor that contains positive points and areas for improvement. A month later the woman reports sick and another month later she starts a reintegration program. The company doctor indicates that the complaints are work- and training-related and advises the head of training and the woman to talk to each other. Based on these conversations, the head of training concludes that the training location is not suitable. The training is stopped and the woman is transferred to another location.
In the first six months at the other location, the woman, like fellow doctors, made several reports about the excessive workload. In January 2015 she dropped out again. In February she starts a new reintegration process, but the workload remains high and in October she reports sick again. In the months that followed, she voluntarily admitted herself to the crisis service of the psychiatric department of a general hospital, due to depression, burnout with insomnia and post-traumatic stress disorder. At that time, the UWV ruled that the employer had not made sufficient efforts to have the woman reintegrated. There are no consequences for this.
All experts who study the issue conclude that the complaints are work-related. Another mediation attempt follows, but the woman does not return and in October 2017, when she has been ill for two years, the employer requests her dismissal due to long-term disability. The UWV approves the application and the parties will separate as of January 2018. At the beginning of 2019, the woman held her employer liable for the damage already suffered and yet to be suffered due to the working conditions that made her ill and the failure to comply with the reintegration obligations between 2013 and 2018. She went to the Amsterdam court for this.
The statement
The subdistrict court judge is faced with the question whether the psychological complaints are due to work and whether the employer has fulfilled its duty of care. It seems quite clear that the workload was high and too high. This is evident from complaints from the woman and from several reports from colleagues. It is therefore plausible enough that her complaints are due to the working conditions. But to hold the employer liable, it must also be shown that the employer did too little to improve those conditions or was even reckless, making the working conditions so sickening.
According to the judge, this has not been proven. An example: the woman blames the employer for having to stop the training. The employer says: you did not want to continue with this supervisor and he is the only one within our organization who could do that. This substantiation convinces the judge. And although the UWV determined that the employer did not do enough and therefore violated the duty of care, it did not attach any consequences to this. For this reason and because the employer took various measures to somewhat reduce the workload, the judge ruled that the employer is not liable for the damage that the woman experienced and will continue to experience as a result of the work.
The commentary
“This case is not about whether the workload was too high, but whether the employer took the measures that could be expected of him on the basis of his duty of care under employment law,” says Johan Zwemmer, lecturer and researcher in employment law at the University of Amsterdam and lawyer-partner at DLA Piper. “The judge will specifically assess which measures the employer took, such as hiring additional doctors, adjusting schedules and planning, taking on fewer clients and following up on workload signals.”
A special distribution of evidence applies here, Zwemmer explains. This is intended to protect the employee. “The employee must substantiate that the connection exists and then the employer must demonstrate that he has done what was necessary to ensure better working conditions.”
The verdict feels a bit harsh, the woman clearly dropped out due to the working conditions, but the employer is not liable for this. “It is a strict ruling, it could turn out differently on appeal. In cases where an employer says ‘I do what the company doctor says’, judges also rule that this does not exonerate him or her, because incorrect advice from a company doctor is in principle at the employer’s risk, because he or she is ultimately responsible for reintegration. But here the judge rules differently, even after the UWV’s decision. If the UWV had imposed a sanction, the judge might have come to a different decision.”
But according to Zwemmer, broader judicial restraint may also play a role here. “Burnout is now a common and visible clinical picture. Precisely because such complaints are difficult to define and can have multiple causes, judges are cautious about quickly assuming employers’ liability. You also saw this with RSI twenty years ago. There were many claims, judges were reluctant to assess and then the number of cases quickly dried up. So there may also be a procedural economic consideration behind this.”