Dutch employers have a duty to secure a safe working environment. Failure to do so will render an employer liable for any damage suffered by an employee in the performance of their duties. Arranging for a safe working environment is clearly much harder to do if the performance of an employee’s duties requires travelling.
In 2008 the Dutch Supreme Court ruled in two cases that the employer’s duty of care includes the duty to hold suitable insurance, at its own expense, for the benefit of its employees. The insurance should cover all risks that arise when an employee is travelling in the course of performing his duties. In principle, the employer will not be liable for any damage suffered by an employee when commuting to and from work. However, there is often a grey area between commuting and business travel, e.g.:
- the employee travels from a customer's site to his own address at the end of a working day; or
- on his way home, the employee makes a detour to drop a package at the postal office.
Failure to provide insurance as described above will render the employer liable for any damage suffered by the employee during such travelling, regardless of the employer not having any control over the risks that may arise in traffic.
The insurance should cover travelling by all means of transport (e.g. walking, bicycle, car). It is recommended that insurance coverage for the grey area described above, is also sought.
Effect on employers
It is recommended that employers verify their current insurance coverage with regard to risks arising in respect of employees travelling in the performance of their duties. Employers should also ensure that employees travelling as passengers will also be covered by the insurance policy.
Dutch Supreme Court, 1 February, 1 February and 12 December 2008, JAR 2008/56, 57 and LJN: BD3129