December is traditionally the season of Christmas dinners, end-of-year drinks and other company outings. For many employers, this is a recurring opportunity to thank employees. Less attention is often paid to the legal risks associated with such activities. These may fall under employer’s liability. This means an employer can, in some cases, be responsible for damage employees suffer during organised activities. It is therefore important that the employer reflects on their duty of care and on the measures that need to be taken.
Employer’s liability
Article 7:658 of the Dutch Civil Code is the starting point for employer’s liability. This article requires the employer to take all measures that can reasonably be considered necessary to prevent employees from suffering damage while performing their work. Case law interprets this concept broadly. It covers not only the traditional workplace but also activities that are sufficiently connected to the work.
Once the employee makes it plausible that the damage occurred during such an activity, a heavy burden of proof shifts to the employer. The employer must demonstrate that they fully complied with their duty of care or that the damage was the result of intent or conscious recklessness by the employee.
In addition to article 7:658 DCC, an employee may invoke article 7:611 DCC. This article establishes the standard of good employment practices. It offers a supplementary framework in situations where damage arises outside the strict scope of article 7:658 DCC. Employees may rely on the employer acting with due care beyond regular work activities. Damage occurring outside working hours may therefore also be borne by the employer. This applies especially when the employer initiated the activity and employees felt a (social) obligation to attend.
Liability for damage during a company outing?
Whether an employer is liable for damage suffered during a company outing depends on whether there is a sufficiently close connection between the outing and the work. The court considers all relevant circumstances. Factors that may be relevant include:
- Is the activity intended to promote team bonding?
- Is participation experienced as a (social) obligation in practice?
- Does the activity take place during or directly after working hours?
- Is the activity funded and organised by the employer?
The location of the outing is irrelevant. An employer can also be liable for damage suffered at an external venue.
Particular risk of damage
The Supreme Court stresses that an employer must take measures to prevent damage when an activity involves particular risks. An example is a roller-skating lesson. The employer was held liable for injuries a worker sustained during this lesson. The lesson was not considered an activity a good employer may offer without safety measures.
Christmas and New Year gatherings
Extra caution is required at company events such as Christmas or New Year gatherings. Alcohol is often served at these events. The employer remains responsible for maintaining oversight and taking reasonable steps to prevent accidents and damage.
Practical tips for employers
For high-risk activities, such as riding electric scooters, taking a speedboat trip or participating in activities on obstacle courses, the employer must assess potential hazards in advance. The employer must also determine which measures are needed to mitigate risks. Record this assessment and the measures taken carefully. Consider giving instructions to participants, issuing warnings for specific risks, checking the route or location and providing protective clothing or other safety equipment.
For company parties such as Christmas or New Year events, it is advisable for the employer to adopt a clear alcohol policy, especially for larger gatherings. Consider arranging supervision or security and ensure that employees can get home safely afterwards, for example by arranging transport.
Finally, it is important that participation in an outing or event is clearly voluntary. Keep a record of who signs up so it can later be demonstrated that employees had a genuine option not to participate.
If you have questions about employer’s liability, feel free to contact us.
