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Employer’s duty of due care for “own-account workers”

Employer’s duty of due care for “own-account workers”

On 23 March 2012 the Dutch Supreme Court ruled that employers could have a duty of due care if they engage the services of own-account workers (zelfstandigen zonder personeel or “zzp’ers”). Therefore, a company can not only be held liable for the damage and/or loss that an employee suffers in the performance of his duties, but under certain circumstances it can also as a commissioning party be held liable for the damage and/or loss that an own-account worker suffers during the performance of his duties.

Ruling

From the end of 2004 to the beginning of 2005, an own-account worker performed work in the business of Royalspan on a fibre processing machine for a number of weeks. He worked regularly for this business and repaired machines there. In the performance of this work, the own-account worker was involved in a serious accident, resulting in the amputation of his right leg up to his knee. The own-account worker adopted the position that Royalspan had violated its duty of due care and that within this context his injury had to be compensated. In connection therewith, the own-account worker referred to Article 658 of Book 7 of the Dutch Civil Code and argued that this Article should also be applicable to the relationship between a commissioning party and an own-account worker.

Article 658 of Book 7 of the Dutch Civil Code applies in principle solely to the relationship between an employer and an employee. From this Article ensues – in brief – the obligation of the employer to compensate the damage and/or loss that the employee suffers in the performance of his duties, unless the employer can demonstrate that he has fulfilled his duty of due care or that an intentional act or omission or wilful recklessness on the part of the employee exists. In 1998 a fourth paragraph was added to this section of the law. The basic principle of this fourth paragraph is that the employer can not only be held liable for his own employees, but under certain conditions also for persons performing work who are considered equivalent to his own employees. The classic example thereof is the temporary agency worker. It is evident from the legislative history that in adding this paragraph the legislature intended to hold an employer who fails to comply with his duty of due care equally liable for the damage and/or loss of others who work for him on the shop floor/in the workplace.

The Supreme Court considered that it can be concluded from this legislative history that the duty of due care extends to providing protection under certain conditions to persons who find themselves in a position comparable with that of an employee. Whether a person finds himself in a position comparable with that of the employee must, according to the Supreme Court, be determined on a case-by-case basis. To that end, the actual relationship between the parties concerned and the nature of the work performed are, among other factors, of importance. Also included in the consideration is the extent to which the employer influences, via auxiliary persons or not, the working conditions of those who perform such work and the safety risks in connection therewith.

The own-account worker in this case had already been employed at Royalspan for a number of weeks prior to the accident. He had worked there regularly. Moreover, it was argued that one of the business operations of Royalspan related to carrying out repair work on site, that is to say the same work that the own-account worker performed. In light of these circumstances, the Supreme Court concluded that the own-account worker was equal to a regular employee and that against this background Article 658 of Book 7 of the Dutch Civil Code was also applicable to the relationship between Royalspan vis-à-vis the own-account worker.

In sum

Companies must be prepared for the possibility that they can be held liable for the damage and/or loss that an own-account worker (as supplier) suffers in the performance of his work. They would be wise to take the necessary precautionary measures in that regard. The conclusion that every commissioning party can be held liable for the damage and/or loss that an own-account worker suffers does not, however, appear to me to be appropriate. The expansion that the Supreme Court introduced pertains especially to own-account workers whose work is more or less equal to that of a regular employee, for instance an own-account worker who works for a prolonged period of time for one employer and who also performs the same work as that of the commissioning party himself. Nevertheless, the Dutch federation of trade unions FNV has already noted that possibly more own-account workers will now fall under the working conditions legislation as a result of the Supreme Court’s ruling. You will – via our knowledge portal – be kept abreast of developments ensuing from this ruling.

Frédérique Hoppers

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