Many employers hold staff events for their employees, at which the activities can range from balloon flights to raft-building exercises to jeep trips. It is not uncommon for an employee to be injured through an accident at such an event. Under certain circumstances, the employer can be held liable for the employee's damage. These circumstances, which have been developed in case law, are outlined below.
Employers' liability in general
Under Article 7:658 of the Dutch Civil Code ("DCC"), an employer is liable for damage suffered by an employee in performing his duties unless the employer can show that (i) he/it has sufficiently complied with his/its duty to, in short, provide a safe workplace and give the instructions necessary to enable the employee to perform his duties without suffering damage, or (ii) the damage was caused by the employee's wilful intent or wilful recklessness. An employer can in principle only be held liable under this provision if he/it had control over the employee's workplace and was entitled to give the employee instructions regarding the manner in which the work was carried out.
Pursuant to Article 7:611 DCC, an employer is required to act as a 'good employer'. Based upon this provision, an employer can, in special circumstances, be held liable for the consequences of accidents that are related to the employee's duties but were beyond the employer's control, for example traffic accidents. This article is limited to accidents that occur during staff events.
Liability for the consequences of accidents at staff events
Liability under Article 7:658 DCC is only possible if the staff event can be considered an activity at which the employee was "performing his duties". A few examples from the relevant case law are discussed below.
Collision during balloon flight
A case decided by the Amsterdam Subdistrict Court on 8 January 2003 involved a balloon flight that an employer had organised for his employees and during which an employee was injured when the balloon basket hit an office building. The court held that Article 7:658 DCC did not apply in this case since the employer lacked control over the workplace (i.e. the balloon) and could not give instructions in that regard. The court also held, however, that even where the requirements in Article 7:658 DCC are not met, an employer can under certain circumstances be held liable to an employee based on the principles of reasonableness and fairness and/or the obligation to act as a good employer under Article 7:611 DCC. In this case, the employer was held liable on the latter ground. The accident took place during an event organised by the employer for his employees and in which they were as a rule expected to participate. In addition, the employer had chosen the activity without the employees' knowledge (the activity was kept secret), with all the risks inherent therein. Finally, the employer was apparently insured against the accident's financial consequences.
Company sports day
In a judgment rendered on 6 July 2004, the Court of Appeal of Den Bosch held that Article 7:658 DCC did not apply in the case of an employee who had suffered an accident at a company sports day. The court based its conclusion on the fact that (i) the event took place outside normal working hours (on Saturday), (ii) it was arranged by a professional event organiser and not by the employer itself, (iii) attendance at the event was not mandatory and (iv) a large number of employees did not in fact attend. The court concluded that the conditions for liability set out in Article 7:658 DCC - that the employer had control over the workplace and was entitled to give instructions regarding the manner in which the work was carried out - had not been met. The fact that the injured employee felt that his position had required him to participate in the sports day did not change the court's opinion. The court further held that liability under Article 7:611 DCC is only possible in special circumstances, which were not present in this case. The employer was therefore not liable.
Employer liable for shortcomings of third party hired to run event
However, the employer is not allowed to simply hide behind a third party he has hired to organise and run the event. As shown by the balloon flight case, even if Article 7:658 DCC does not apply, liability under Article 7:611 DCC may still be possible. Another example is set out below.
Roller skating on marble floor
A case decided by the Amsterdam Court of Appeal on 30 October 2007 involved an employer who organised after-work activities for employees once per quarter on Friday afternoons. One such activity was a workshop on roller skate dancing, which was given by professional roller skaters and took place on the marble floor in the lobby of the employer's office building. A female employee, who did not work on that day but came to the office specially to attend the workshop, fell after skating a few meters and broke her wrist. The court held that the employer was not liable because the accident did not take place in the performance of the employee's duties: there was an insufficiently close relationship between the employee's duties and roller skate dancing on a Friday afternoon after working hours. Furthermore, participation in the workshop was completely voluntary. However, the court held the employer liable under Article 7:611 DCC, citing various factors. The workshop was sufficiently work-related to fall within the scope of that provision, since it was an activity for employees and was held on the employer's premises. In addition, the employer had co-organised the activity in that he had hired the company that ran the workshop and had rented the skates. The employer was thus responsible for that company's failure to take sufficient precautionary measures. The court also considered it important that the employer did not warn the employees that the roller skating company had not taken out insurance for them. All of these factors led the court to conclude that the employer had to compensate the employee for her damage.
It is noteworthy that in both the balloon flight and roller skating cases the court considered it important whether or not the damage suffered by the injured employee was covered by insurance and, if not, whether the employees were warned that this would be the case. In the balloon flight case, the employer was apparently insured for the financial consequences of the accident. In the roller skating case, the roller skating company did not have liability insurance that covered the employees and, according to the court, the employer should have been aware of this and warned the employees.
The above cases show that the court takes all the circumstances of the particular situation into account when determining whether an employer is liable for damage resulting from an accident during a staff event. It is important to consider all aspects of the case because this will determine the legal basis for liability, if any: Article 7:758 DCC or Article 7:611 DCC. In some cases, it may also be possible to hold the employer liable under the general tort statute, Article 6:162.
Obviously, staff events should not be avoided simply because of a fear of accidents and liability. It is advisable, however, to carefully consider whether the contemplated activity is too risky. In addition, the employer should take sufficient safety precautions, such as giving clear instructions to employees and furnishing protective clothing. Finally, it is important that if the employer's liability insurance will not cover accidents at the staff event, the employer should warn employees that they are themselves responsible for procuring such insurance. An example of where this is especially important is a skiing trip, which is a popular staff event. Not every employee will have insurance covering skiing accidents.