An employee believes that his employer is liable for the damage he suffers as a result of burn-out. The employee argued that he had suffered symptoms in the performance of his work and that the employer had breached its duty of care. The case is being litigated in two instances. What is the opinion of the Court of Appeal?

In the period from 2007 to 2014 the employee was absent from work several times due to physical and/or psychological complaints. In an e-mail dated 15 March 2007, the employee informed his supervisor at SBM that he was close to burn-out. Upon his return, employee asked to see how the pressure of work could be kept within manageable proportions. SBM agrees. Following notification of sickness by the employee in April 2008, the company doctor drew up a problem analysis and recommendation on 29 April 2008. The advice stated that the employee could carry out activities without any pressure for a limited number of hours. During the sickness period from February 2010 to February 2011, the company doctor made the prognosis that there were doubts as to whether the employee could still perform all aspects of his own job. This particularly relates to travelling abroad and working under heavy time pressure. On 1 July 2014, at his own request, the employee returned to work as a Gas Consultant. Since 22 June 2015, employee has been completely unfit for work. After being granted leave by the UWV on 4 December 2017, SBM terminated the employment contract with employee by 1 April 2018. Employee holds SBM liable for psychological injury.

The court of appeal interprets the employee's statements as meaning that there was talk of very serious psychological complaints, sustained in the performance of his work. In this context, the court of appeal put first and foremost that burnout is a multi-causal occupational disease, the cause of which may also lie in circumstances relating to the employee's private life, such as his personal predisposition or other circumstances not related to work. It is then up to the employee to establish sufficient facts and circumstances with regard to his work situation on the basis of which it can be assumed that his complaints arose from his work and not from something else. However, a statement by a medical expert who has established the burn-out(s) and the cause thereof is missing.

In view of the above, the Court of Appeal considers the connection between the health damage and the working conditions too uncertain and too indeterminate. This also applies to the pressure of work and the overtime up to and including 2008. In this period, at least up to and including 2006, the employee travelled extensively. This undisputedly led to the (registration of) a considerable amount of travel/overtime. After 2006, the employee only travelled occasionally for work and the amount of overtime reduced. After the beginning of 2008, overtime was almost non-existent. The employee has not provided any further evidence on appeal to substantiate the existence of a causal link between the pressure of work and the high number of overtime hours in the period up to the beginning of 2008 and the employee's complaints following his absence in 2015. The conclusion from the above is that the link between the working conditions and the health damage claimed by the employee is too indeterminate and the lower limit for the application of the labour law rule of reversal of injury is not met. The medical data submitted did not make it sufficiently clear what the diagnosis, nature and seriousness of the psychological complaints in particular were, which makes it impossible to make any statements about their probable causes. It was incumbent on the employee to provide this clarity regarding the diagnosis, nature and severity of the medical complaints. Furthermore, the conclusion is that the employee has not sufficiently demonstrated the causal link between SBM's conduct and the damage he claims to suffer as a result of his complaints. The court of appeal is further of the opinion that even if there is a causal connection between the actions of SBM and the damage suffered by the employee, SBM has not breached its duty of care within the meaning of Article 7:658(2) of the Dutch Civil Code. The court of appeal is of the opinion that SBM, when the employee indicated that the pressure of work was becoming too much for him, took the right measures and gave him ample space and opportunity for recovery, reintegration at his own pace and was open to working part time. SBM has thus fulfilled its duty of care towards the employee. The fact that SBM does not have a specific preventive policy against burn-out does not lead to a different conclusion. This has not been sufficiently argued by the employee.

Read the full judgment here.

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