Whenever an employee in the performance of his duties suffers damage, injury or loss, it will be his employer with which liability rests. According to prevailing legislation, it is up to the employer to organise and maintain the premises, equipment and tools with which it has its employees perform their duties, and implement such measures and issue such instructions as to prevent its employees from suffering damage, injury or loss. The employer has the option of producing evidence to the contrary, by demonstrating that it had satisfied the aforementioned obligation or that the damage, injury or loss sustained by the employee resulted from intent or deliberate recklessness on said employee’s part. It should be noted that employers have a considerable duty of care.
The Eindhoven Sub District Court held an employer liable when one of the latter’s staff accidentally had a finger amputated. Having worked overtime and wanting to go home, the employee discovered that the gate had been locked. Rather than trying to find someone who would be able to unlock it, he decided to go over the top. Unfortunately his ring caught on one of the spikes at the top of the fence and his finger was torn off. According to the Sub District Court, the employer had failed to prove that the employee had acted in a deliberately reckless manner. The mere fact that the fence in question was quite high and had steel spikes running along the top was considered to be insufficiently convincing by the Court, which went on to state that the employer had failed to meet its duty of care, as it should have set up the business site including the perimeter fence in such a manner as to offer reasonable protection to employees against damage, injury or loss. It would not have been possible to scale the fence without the help of a post-mounted litter bin which was situated next to the gate. In fact it had not been the first time that an employee had scaled the fence. The Court ruled that the employer should have realised that an employee who inadvertently found himself locked in might decide to use the litter bin as a leg-up and scramble his way out.