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Damage resulting from employee disability: can you recover losses and reintegration costs from the liable party? How does it work again?

Damage resulting from employee disability: can you recover losses and reintegration costs from the liable party? How does it work again?

If your employee has been rendered unfit for work because of an accident, you as employer could be facing hefty losses. For instance, Article 7:629 of the Dutch Civil Code requires an employer to continue paying its employee’s wages for a period of two years if the employee is sick, even though no work is being performed. In principle 70% of the most recently earned salary must be paid, unless a more generous scheme for the employee has been agreed on in an individual employment contract or collective labour agreement. It is also conceivable that you could suffer damage because you lose turnover as a result of the loss of your employee or because you have to incur costs to hire a replacement. Furthermore, as employer you are required on grounds of Article 7:658a of the Dutch Civil Code to make efforts to have an employee rejoin the labour process after his absence. These reintegration costs can also mount up quickly.

If your employee has become unfit for work because of an event for which a third party is liable, you can recover some of your losses from that liable party.

Employer losses due to continued wage payment
The wages that you must continue to pay are usually the biggest cost item if you do not have sick leave insurance. On grounds of Article 6:107a, paragraph 2 of the Dutch Civil Code you can recover the continued wage payment from the liable party. The employer’s recourse is, however, limited to the amount to which the employee himself could claim from the liable party if no obligation to continue to pay wages existed. Your claim is therefore limited to the net wages that continue to be paid.

Reintegration costs
On grounds of Article 6:107a, paragraph 3 of the Dutch Civil Code the employer can recover from the liable party the reasonable reintegration costs incurred. According to the parliamentary history, these recoverable reintegration costs include the costs of administrative activities, such as drawing up an action plan and the reintegration report. The recoverable reintegration costs also include the costs paid by the employer for the activities that the employee undertakes with a view to resuming work, such as a course or educational programme for necessary retraining, re-skilling or refresher training. The costs of engaging a reintegration company can also be recovered. The costs of activities aimed at helping the employee find a new employer, such as job application training, can also be included in this. Also recoverable are the costs incurred by the employer in adapting (access to) the work place or the work itself to the employee’s limitations or disability, such as transportation facilities, a Braille computer, an interpreter for the deaf or having written text read aloud.

Loss of turnover and costs for replacing worker
In principle, loss of turnover and costs for hiring a replacement are not recoverable, because there is no legal basis.

Loss of employee caused by colleague?
If the liable party is one of your employees, you can only take recourse on this employee on grounds of Article 6:107a, paragraph 4 of the Dutch Civil Code if this employee can be blamed for acting with intent or wilful recklessness, which is seldom the case.

Conclusion: employer losses due to continued wage payment and reintegration costs recoverable
The employer can recover from the liable party the net wages that continue to be paid and the reasonable reintegration costs incurred. If the liable party is also your employee, costs can only be recovered in the event of intent or wilful recklessness. In principle, loss of turnover and costs for hiring a replacement are not recoverable. We would be happy to assist you with the recovery of employer losses due to continued wage payment and reintegration costs from the liable party.

By Frank Arts

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