Compensation for Excessive Work Load

A care worker who was seriously overburdened and who had fallen ill and had become labour incapacitated for a long time as a result, was not entitled to a fair compensation, but to a worker’s compensation instead, since the employer had failed to provide safe working conditions.

A residential care facility for the elderly employed a female carer, who used to work 28 hours per week. She mainly worked night shifts, where she was responsible for, e.g., ensuring correct medication, dressing and/or washing residents, changing catheters, providing assistance in case of fall incidents, helping residents use the toilet and changing residents and their bed linen in case of faecal incontinence or leaking ostomy-bags. In total there were about 170 residents who could call on the carer for these services. The residential care facility had 59 apartments spread over four floors and there were 190 adjacent assisted living facilities. In order to prevent a standstill of the services if the elevator would be out of order, the employee was not allowed to use the elevator and therefore always had to use the stairs. An alarm from the residents should be responded to within three minutes.
Until June 2016, these tasks were carried out together with a care assistant. At nights also a nurse was available, but he or she had to divide his/her attention between nine houses.
In June 2016, a new system was introduced enabling image and sound connections to provide care. From that moment onwards, the carer had to do the night shift on her own.

The introduction of the new system met a number of problems, however. For example, it was difficult or even impossible to understand the residents, due to the fact that the housings with the camera and the microphone had not been installed in the bedrooms.
The changes meant that two night shift colleagues resigned.
Highly motivated to provide the residents with good care, the employee sent e-mail messages to her supervisor, to the manager and to the Chairman of the Governing Board, pointing out the shortcomings of the new system and the excessive workload. Also the nurse sent the supervisor an e-mail stating that it was impossible to have the work at night done by one person only. In January 2017 the decision was made to add a so-called “stray nurse” to the staff. From 23:00 to 01:00 and from 05:00 to 07:00 one extra person became available for support. In June 2017, however, the arrangement was changed into one stray nurse for two locations, alternately working at one location from 23:00 to 03:00 and from 03:00 to 07:00 at the other. In the meantime, the employee continued complaining that some of the shortcomings in the alarm system still remained unresolved.
When, in June 2018, the employee reported ill, simply because she could not continue working like she did and she requested a reduction in her working hours. It was agreed that she would work 24 hours a week instead of 28 and that she would take eight overtime hours per week until the end of the year. In September 2018, however, the employee completely burned out.

It was not until early 2020 that the employee partially resumed work, but due to a heart attack in June 2020, her reintegration was discontinued. In the end, the employee was dismissed as of November 1, 2021 for long-term labour incapacity. The employee’s claim for a fair compensation of € 78,000 and a compensation for non-material damage in addition to the transitional allowance was rejected by the Sub-district Court.
Then, the employee lodged an appeal with the Court of Appeal.
This time she not only claim a fair compensation, but also for worker’s compensation. The Court of Appeal also rejected the claim for payment of the fair compensation for reason that the applicable high threshold was not met. True, the employer had dropped a few stiches in the process, but there was no question of seriously culpable behaviour. The claim for worker’s compensation, however, was granted by the Court of Appeal, because the employer had not complied with the duty of care for a sufficiently safe working environment for the employee. According to the Court of Appeal, the employer had insufficiently clarified how the discussions with the employee about the identified shortcomings in the system and the complaints about the work load, had been addressed and how relief was offered.
The causal link between the failure to observe the duty of care and the employee's illness, required for granting the compensation, was assumed by the Court of Appeal on the basis of the employee's frequent complaints about the work load, the conclusion of the employer's internal investigation that there was a worrying situation in the residential care facility, an e-mail message from the supervisor to the employee acknowledging the increased burden on the employee and the problem analysis by the occupational physician in which the combination of the work load and the way in which the employee wanted to do her work was cited as the cause of the labour incapacity. According to the Court of Appeal, this was more than sufficient to conclude that the failure to comply with the duty of care towards the employee had played an important role in the employee's burn-out.
The amount of the compensation was determined on the basis of the loss of income in the first three years of the labour incapacity, an amount of over € 28,000. If, according to the Court of Appeal, the labour incapacity would last more than three years, it is likely that an also other circumstances, beyond the employer’s liability, played an important role.

The legislator has deliberately set the bar high for granting a fair compensation, on top of the mandatory transitional allowance. It requires the presence of seriously culpable acts or omissions and, based on legislative history, this will not easily be the case.
The requirements are less strict for granting a claim for worker’s compensation due to an employer’s violation of the duty of care for safe working conditions or for acting in violation of good employment practices. However, there must be evidence for the causal link between the employer's acts or omissions and the labour incapacity. In a case of mental labour incapacity this is quite often a problem, but in the above case the Court of Appeal found the causality sufficiently plausible.