Over the past weeks, we have been providing practical answers to several of such employment questions under Belgian, Dutch, and Luxembourg law. Take a look at our final Q&A.
Q: Jack, one of your employees, is a huge athletics fan. He was so excited that his favourite athlete Christian Taylor won the men’s triple jump that he started to imitate his idol in the hallway of your company. However, he has fallen and has broken his leg. Are you as an employer liable for the accident under Belgian, Dutch and Luxembourg law?
A. In principle, employers benefit from civil immunity for work accidents. An employee who becomes a victim of a work accident is covered by the mandatory insurance policy covering work accidents contracted by the employer.
In the present case, Jack fell and broke his leg in the hallway of the company because of his own imprudent idea to imitate a triple jump athlete. Will this accident qualify as a work accident covered by the insurance policy?
First of all, in order to qualify as a work accident, there must be a link between the occupation and the accident. This means that the accident would have had to have taken place during – as well as because of – the performance of the employment agreement. Belgian courts have the tendency to interpret this link rather broadly. If the employee is under the authority of the employer at the moment of the accident, the accident is assumed to have been caused by the performance of the employment. If Jack was walking down the hallway of the company during working hours, for example on his way to get a coffee, there would be sufficient link between the accident and the employment.
Secondly, the fault of the victim is not taken into account. Each accident which is linked to the job of the victim, even if the job was executed incorrectly, will be considered to be caused by the performance of the employment agreement. The fact that the accident was caused by Jack’s imprudence does not disqualify it as a work accident. Only if he had caused the accident intentionally would he not have been covered by the insurance policy.
Too bad for the insurance company. The insurance policy will very likely have to cover Jack’s silliness in the hallway.
A. An employer is liable for any loss suffered by the employee in the course of his or her work, unless the employer can show (i) that it complied with the duty of care (i.e. it has taken all reasonable measures and provided instructions, as are reasonably necessary to prevent employees from suffering any loss in the performance of their duties); or (ii) that the loss was to a large extent the result of intent or deliberate recklessness on the part of employee. The key phrase here is “in the course of work”. This means that there must be a connection between the work performed by the employee and the employee’s injury. Jack has broken his leg during working hours while imitating a triple jump athlete, which is of course not part of his work. Hence, you will not be liable for Jack’s injury.
This conclusion does not however imply that you won’t have to continue Jack’s salary during the time that Jack cannot work due to his broken leg. In case of illness of an employee (such as a broken leg), the employer is obliged to continue payment of at least 70% of the employee’s last earned salary capped at the maximum daily wage (for social security purposes), during a maximum of two years. Although this obligation will not apply where the illness has been due to the employee’s own intent, this exception is seldom assumed by the court. Jack certainly did not intend to break his leg and, as such, his incapacity for work cannot be considered caused intentionally. He therefore remains entitled to (part of) his salary.
A: All employees working in the Grand-Duchy of Luxembourg must be insured against work-related accidents. A company established in Luxembourg must register all employees with the Social Security Office and shall pay the compulsory social security contributions for their employees. Work related accidents are automatically covered by the compulsory social security contributions.
An accident which took place during working hours and at the place of work is presumed to be a work-related accident. As Jack has broken his leg in the company’s hallway, this accident probably also occurred during his working hours. The legal presumption that Jack’s accident is a work-related accident is thus applicable in this situation.
Assuming the above, Jack has to immediately inform his employer. His employer shall then declare the accident to the Accident Insurance Association (l’Association d’Assurance Accident) describing Jack’s role and tasks under his employment contract as well as the circumstances of the accident.
Given that jumping around wildly is unlikely to be in Jack’s job description, the Accident Insurance Association would likely refuse to recognise this accident as a work-related accident (if the scene were described accurately). In fact, it could consider that – unless Jack is employed as an actor, comedian or clown – an accident caused by him imitating an athlete during his working hours does not constitute a work-related accident as said athletic demonstration is not related to his work.
If the description of the accident only mentions that Jack slipped in the corridor, fell and broke his leg, the Accident Insurance Association would have to prove that the accident is not a work-related accident.
The Employer should not, however, deliberately provide an inaccurate description of the accident as this could result in sanctions. The employer should thus provide the relevant information to the Accident Insurance Association and let it determine whether or not Jack’s Olympic antics are covered by the accident insurance.