Employer Has to Pay a High Amount of Overtime Hours and is Liable for the Damage Resulting from Burnout

hours will not only still have to pay the majority of these overtime hours, but is also held liable for the damage resulting from the employee’s burnout because the employer had violated its duty of care by having the employee work far more hours than the 48 hours per week on average allowed.
A subsidiary of an American company employed a foreign employee who, after two years of employment, burned out and, as a result, became long-term labour incapacitated. After the incapacity had lasted for two years, her employment contract was terminated. The employee then claimed compensation for 3,478 overtime hours and compensation for the damage she suffered as a result of her health problems. This claim lead to legal proceedings, in which the Court of Appeal had to rule on appeal.
First of all there was a dispute between the parties whether the employer had violated the Working Hours Act as a result of the number of hours the employee had worked. Under the Working Hours Act, an employee is not allowed to work more than an average of 48 hours per week. This provision does not apply, however, if the employee earns at least three times the statutory minimum wage. The employee's salary was € 4,350 gross per month excluding the holiday allowance. This was less than three times the statutory minimum wage, but the employer stated that various allowances should also be taken into account, such as allowances for a gym, health insurance, telephone and travel expenses and the tax-free allowance of 30% of the wages the employee received as an expat as compensation for “extraterritorial costs”.
From the text and explanation of the Working Hours Decree, however, the Court of Appeal deduced that wages should be defined as a financial payment in return for the work, that it should concern wages set in money and that it should concern wages that should annually be known in advance. The reimbursements for the gym, health insurance, telephone and travel costs did not count, according to the Court, because these are expense allowances. Thus, the employee's wages remained below the limit of three times the statutory minimum wage, even if the reimbursement for healthcare costs would be regarded as wages. The Court therefore concluded that the Working Hours Act applied to the employee.
Subsequently, the Court found that, in violation with the Working Hours Act and the European Working Hours Directive, the employer had failed to keep proper records of the employee's working and rest hours. The employee had based her claim on the number of hours between each day’s first and last e-mail. In addition, she stated that she had taken breaks and private activities during the working day into account by not exceeding more than 19 hours per day. She had also submitted a statement from a former manager, showing that she had to continue working from home after normal working hours until the early hours of the next morning, partly because she still had to be in daily contact with the head office in San Francisco after the end of the working day, for a significant portion of the working day over there.
The Court of Appeal ruled that not all overtime hours were eligible for compensation, because the salary already included compensation for overtime to be reasonably performed. In view of the nature of the job and taking into account the maximum number of hours allowed under the Working Hours Act, the Court was of the opinion that eight hours of overtime per week on top of the 40-hour working week are reasonable. This would leave 2,646 overtime hours still to be paid. Including the holiday allowance, the employer was thus ordered to pay over € 71,727.77 gross to the employee. On this amount, the employer also had to pay compensation for unused holidays, the employer's contribution to the pension fund and a 15% statutory increase due to late payment. In addition, statutory interest should be paid as of 1 February 2017.
For that reason alone, that the employer had made the employee work a considerable number of hours more than was permitted under the Working Hours Act, the employer had failed in its duty of care for safe working conditions, according to the Court. Therefore, according to the Court, the employer was liable for the damage suffered by the employee in the performance of her duties. The amount of that damage needed to be determined in follow-up proceedings, the so-called “proceedings for the determination of damages”. The Court added that those proceedings should also be used to still determine whether the damage suffered by the employee as a result of the burnout was fully or partially eligible for compensation and whether the burnout was also caused by shortcomings of the employer.

employee as a result of her burnout may not yet have been established, but since the Court had established a violation of the duty of care for safe working conditions, there is a fair chance that the employer will have to pay compensation. The fact that the burnout was, at least partly, caused by the extremely high number of over 30 hours of overtime per week that the employee had to work, will soon imply that a causal relationship between the high amount of overtime hours and the burnout should be assumed. And the fact that the damage should then be attributed to the employer does not seem to be a major obstacle for the employee to obtain compensation.
Where the violation of the duty of care in the above case is linked to exceeding the maximum number of hours that the employee was allowed to work under the Working Hours Act, the question arises whether the obligation to pay compensation would also have existed if the employee would have earned more than three times the minimum wage. In that case, the maximum number of hours in the Working Hours Act would not have applied. What if the employer had also paid the employee for overtime (in that case, the employee would still have been entitled to a bonus), would the Court then also have ruled that the employer had violated its duty of care for safe working conditions?