Temporary worker's workplace accident

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Temporary worker's workplace accident

Article table of contents

Industrial accident as a temporary worker
What is the employer's duty of care for temporary workers?
Liability of a temporary employment agency for an accident
Temporary employment agency waiting days for industrial accidents
What damages can you receive compensation for as a temporary worker after a workplace accident?

Industrial accident as a temporary worker

The Netherlands employs a growing number of temporary workers. These employees are generally more likely to be injured in workplace accidents. Why? They work for a company for a shorter period of time, are less familiar with the rules, and sometimes don't yet have a thorough command of the language. Proper instruction and guidance are especially important, but most employers don't take the time to provide them. This means that temporary workers are more likely to be involved in workplace accidents.

If you, as a temporary worker, have an industrial accident, what should you do first?

Seek medical attention;
If possible, take photographs of the accident scene;
Ask colleagues or bystanders for information for a witness statement;
Report the incident to your manager and the employment agency;
Keep track of all expenses and keep receipts and invoices.

If you are taken away by ambulance, it is of course difficult to take photos or collect details. Ideally, the employer arranges this for you using an internal reporting form . In the event of serious workplace accidents, the employer is required to notify the Labour Inspectorate—including for temporary agency workers.

As a temporary worker, the consequences of a workplace accident are often significant. Why is this? Wages are not (fully) paid, and contracts are usually not renewed. Who can hold a temporary worker liable in such cases? Who can they recover damages from? We will answer these questions here.

Liability for industrial accidents involving temporary workers

Someone working through a temporary employment agency effectively has two employers: the formal employer (the temporary employment agency) and the material employer (the hiring company/for whom the temporary worker performs the work). Which employer should hold the temporary worker liable for damages following a workplace accident?

The legal basis for liability after a workplace accident is laid down in two articles of law: Articles 7:658, paragraph 4, and 7:611 of the Dutch Civil Code. According to Article 7:611, an employer must act as a good employer. Article 7:658 of the Dutch Civil Code obligates the employer to ensure a safe working environment. Below, we explain how you, as a temporary worker, can use these articles to hold the employer liable after a workplace accident.

Article 7:658, paragraph 4, of the Dutch Civil Code states that an employer is liable for damage to persons comparable to their own employees. includes accidents during working hours and on the work floor. The employee must demonstrate that the workplace accident occurred while performing their duties. The employer must then demonstrate that they did not breach their duty of care.

What is the employer's duty of care?

If the employer has authority over the workplace and/or the performance of the work, they are also responsible for the safety of all employees. This employer's duty of care therefore also includes ensuring a safe working environment for temporary workers.

What does that mean in practice?

The company must take reasonable safety measures to prevent accidents.
The employer must also ensure that sufficient protective equipment is available in the workplace.
In addition, employees must be properly trained and receive instructions on how to work.
The employer must check the desired working method and the use of the facilities.

If the employer fails to meet these conditions, they are failing in their duty of care. As a temporary worker, you can then successfully hold your employer liable for the workplace accident. This is also evident from this Court ruling, in which the employer not only receives a fine from the Labor Inspectorate but also must compensate all damages suffered by the temporary worker.

Who is the employer of the temporary worker?

Under the Working Conditions Act, the hiring company (material employer) is considered the actual employer of the temporary worker. After all, they perform the work within their company. The hiring company manages the temporary worker and must supervise their work.

However, the duty of care also applies to the employment agency as the formal employer. Although the agency has little control over the temporary worker's workplace, the agency can ensure its temporary workers are adequately insured. This is also part of the duty of care.

Article 7:611 of the Dutch Civil Code is the legal basis for good employership. It is the duty of a good employer to ensure adequate insurance coverage for its employees. This duty applies to the hirer (de facto employer) and the temporary employment agency (formal employer). Examples include accident insurance, passenger injury insurance, and good liability insurance.

This article can therefore also be used for work-related accidents, such as traffic accidents during working hours or an accident during a company outing.

Good insurance for employees

The Supreme Court has confirmed in a ruling that employers must provide adequate insurance for their employees. This insurance obligation certainly also applies to temporary workers working for the employer.

Under these articles of law, a temporary worker can hold their employer liable for damages after a workplace accident. Are you finding it difficult to hold your employer liable yourself? Then you can free assistance of a personal injury expert.

You can hold both the employment agency and the company you work for liable. After all, they are, in principle, jointly and severally liable for the temporary worker's workplace accident. As a temporary worker, you can therefore choose who you want to hold liable for the entire amount of the damages. It can be helpful to hold both employers liable for your workplace accident. If you still want to make a choice, but would like more information about the consequences, read on.

In practice, the employer that had influence on the performance of the work will be examined. In most cases, this will be the material employer (the hiring company). After all, the actual workplace is located at this employer's premises, where the temporary worker performs their work.

Holding the employment agency liable

What if a temporary worker chooses to hold only the agency liable, hoping for a permanent contract with the current employer? How does this work in practice?

the temporary employment agency is jointly and severally liable . The temporary worker can therefore choose who to hold liable for the entire amount of the damages. The legislator has regulated this in Article 7:658, paragraph 4, of the Dutch Civil Code. Therefore, the employee can only hold the temporary employment agency liable for the entire damages.
The employment agency can, however, recover the damages from the actual employer, provided the latter was responsible for the employee's safety in the workplace. The legislature has regulated this possibility of mutual recourse in Article 6:102 of the Dutch Civil Code. In legal proceedings, the employment agency can even summon the actual employer to indemnify, so that the actual employer is directly ordered to reimburse the costs. As in this ruling by the District Court.
If the temporary employment agency was aware of unsafe working conditions at the other employer, the agency itself can successfully be held liable.
Sometimes the employment agency and the company where the temporary worker works make agreements about liability, for example, through an exemption clause. However, according to the court. The two employers are not allowed to refer to each other and leave the temporary worker with the damages. Therefore, the court ruled that they are jointly and severally liable for the entire damage.

When is the employer not liable?

In most cases, temporary workers can successfully recover damages from their employer following a workplace accident. However, there are exceptions to this general rule.

In which cases is the employer not liable?

If the accident was caused by reckless behaviour of the temporary worker;
If the damage was caused by deliberate actions of the temporary worker;
If the behaviour or actions of the temporary worker have contributed significantly to the occurrence of the damage;
The temporary worker must also be actually aware of his or her recklessness during the act.

The employer must demonstrate that this is the case. The burden of pleading and the burden of proof therefore rest with the employer (Article 7:658 paragraph 2 of the Dutch Civil Code). In practice, this is quite difficult, and the court will not readily grant this. According to a ruling by the Supreme Court, even repeated warnings by the employer are insufficient to prove this.

Are you, as a temporary worker, unsure whether you can successfully hold your employer liable for your workplace accident? Then request a free consultation from a personal injury lawyer.

Can the employment agency request waiting days after an industrial accident?

Article 7:628, paragraph 5, of the Dutch Civil Code allows for an exception to the obligation to continue paying wages in the event of illness. This exclusion only applies to the first six months of an employment contract.

If a temporary worker is unable to work due to a workplace accident, they are not always entitled to continued payment of their wages. The right to continued payment of wages during illness depends on the temporary worker's phase of employment contract.

In phase A or phase 1 and 2, the temporary worker does not receive continued wages, but rather benefits from the UWV.
In phase B and C or phase 3 and 4 , the sick temporary worker continues to receive his or her wages through the temporary employment agency.

For temporary workers covered by an ABU collective labour agreement in phase A, two waiting days apply, and in phases B + C, one waiting day may be applied.

For temporary workers who fall under the NBBU collective labour agreement, two waiting days always apply in phases 1, 2, 3 and 4.

Waiting days are days the agency worker would have worked but for which they are not paid due to illness. The waiting day is therefore a sick day that remains at the agency worker's own expense. The applicable collective labor agreement (CAO) is stated in your contract. Waiting days may also be invoked if the agency worker is incapacitated for work due to a workplace accident.

What about a temporary employment clause and illness due to an industrial accident?

If this is stated in the employment contract, the temporary worker will not receive pay after a workplace accident. Temporary workers with a temporary employment clause receive sickness benefits from the UWV after one or two waiting days (depending on the collective labor agreement). The employment agency will then report you as sick. A temporary employment clause may only be agreed upon in writing in phase A of the ABU-CAO or phase 1 or 2 of the NBBU-CAO.

If this is not stated in the employment contract, the temporary worker is entitled to continued sick pay after the agreed-upon waiting period. The employment agency will then pay your wages. With a fixed-term contract, you will receive your wages until the end of the contract. With a permanent contract, you can be dismissed by the employment agency after two years of incapacity for work.

How much salary is paid to a temporary worker in the event of illness?

Were you in phase A or phase 1 and 2 of your temporary employment contract? If you fall ill, you will not receive wages, but Employee Insurance Agency (UWV). You will then receive a maximum of 70% of your last earned salary. That represents a substantial loss.

If you were in phases B and C or 3 and 4, you will receive your salary through the employment agency. You will receive 90% of your salary in the first year and 80% in the second year of illness. These percentages apply to the ABU and NBBU collective labor agreements. If you are still incapacitated for work after these two years, you can apply for benefits from the UWV (Employee Insurance Agency). The employment agency will apply for your dismissal after two years of illness.

Did your employer accept liability for the workplace accident? Then you can successfully recover your loss of income . You don't have to do it alone; we to help !

What damages can you receive compensation for as a temporary worker after a workplace accident?

Once liability is acknowledged, you, as a temporary worker, can receive compensation. What damages can you expect?

Damaged personal belongings, such as clothing/telephone
medical expenses (your deductible)
travel expenses to and from hospital/GP/physiotherapist
daily allowance during hospital admission
compensation for domestic help and personal care
costs incurred for jobs that you can no longer do yourself
loss of income due to the accident
study delay (if you are following a course)
compensation for your injury, the non-pecuniary damages

Depending on your personal circumstances, this list of damages can be expanded. All damages must be reasonable and properly supported by medical information about your injury. Some of these damages may need to be calculated into the future if symptoms persist. This can be quite difficult to do correctly. Would you like help with this? Then find a personal injury law firm that has all the necessary certifications, so you can be sure you're in good hands.

Need advice or assistance?

Have you suffered a workplace accident as a temporary worker? Would you like to claim damages for your injuries, but don't know how to go about? The law stipulates that assistance free of charge . With our experience, we'll ensure you get what you're entitled to!

Van der Toorn Personenschade stands by your side when recovering your personal injury damages . We assist you with legal discussions with your employer and ensure solid substantiation of your damages. Therefore, please feel free to contact Van der Toorn Personenschade without obligation. You can do so via our email address info@letselschadebureau.nl or via WhatsApp/telephone (06-13396296 or 06-52331207).

What customers ask

Is your help really free for me?

Absolutely, our help is truly FREE.

Your counterparty is also obligated to reimburse your legal costs (i.e., our firm's fees). This is stipulated by law (Section 6:96 of the Dutch Civil Code).

At Van der Toorn Personal Injury, you'll receive a written cost guarantee upfront with a clear explanation. This also clearly states what you can expect from us and what we can expect from you.

We guarantee that the liable party will reimburse our costs. If they don't, it's our business risk. You'll never receive a bill from us. We promise!

Still unsure? Just contact us. We'd be happy to explain how our cost guarantee works.

If you'd like to learn more about our FREE personal injury assistance, click here. Clarity is paramount!

When can I claim personal injury damages?

You can claim damages for personal injury if you have suffered an injury (been injured) due to the fault of another person

Personal injury can be caused by, for example:

In addition, you may think of injuries sustained during:

organized trip
unsafe product or
fall at someone else's home, in a shop or on the street

It's best not to wait too long to file a personal injury claim. It's best to do so immediately after the accident.

Even if it is not yet clear at that time what your injury and its financial consequences consist of.

However, someone else must liable and must have taken out liability insurance for this (AVP/AVB/WA).

However, even if you caused the accident yourself, you can sometimes still claim compensation for personal injury. For example, if you SVI (Passenger Injury Insurance) or SVO (Opzittende Inschadende).

Are you unsure whether and when you are entitled to personal injury compensation?

Don't hesitate to contact us now for a free, no-obligation consultation. It's free , and you'll know exactly where you stand. Afterward, you can decide for yourself what to do with our advice.

What injuries do you treat?

We can actually help you with all types of personal injury

Van der Toorn Personal Injury can help you with all types of injuries. We specialize in handling "serious personal injuries," such as:

brain injury (ABI)
spinal cord injury
burns
dystrophy
bone fractures and
cosmetic injury.

But of course, we are also very happy to be there for you if someone else has sustained an injury. Such as neck injuries, whiplash, back injuries, bruises, sprains, dog bites, temporary injuries, and you name it.

We cannot help with all types of personal injury

The only thing we cannot help you with is personal injury caused by:

violence
medical errors and/or
situations of abuse.

In that situation, we will of course refer you to a party that is specialized in this.

Always request free, no-obligation advice on personal injury claims

Do you have questions about your personal injury? Or are you unsure if we're the right place for you?

Please do not hesitate to ask us for a complete and free, no-obligation personal injury claim consultation.

When should I contact you?

You don't have to! But it's in your best interest to contact us as soon as possible

Only then can you be certain that there is someone who thinks solely of your interests . Because that is our job: thinking of *your* interests.

But what is: as quickly as possible?

Sometimes an insurance company will contact you very shortly after the accident. They'll ask how you're doing and also ask for all sorts of other information.

You cannot know whether that insurer is asking “too many questions” from a legal perspective. About your health before the accident and which doctors you visited. You would rather avoid that, wouldn't you? So never wait too long to engage a personal injury firm.

It's also likely that you'll quickly incur significant expenses . Or your incomemay disappear. We'll handle the initial damage payments from the other party. Then you can focus on your recovery.

Would you like to know what's best for you? Don't hesitate to contact us , without obligation

We'll give you clear advice right away . Then you can decide for yourself what to do with it.

If we think we can help you, we will let you know right away.

At the same time, we guarantee that our legal assistance completely free of charge .

To learn more about our FREE personal injury assistance services, click here.

What personal injury compensation amounts am I entitled to?

The personal injury compensation amounts you are entitled to are:

Allowances for additional assistance, such as:

household help, shopping, taking children to school, etc.
help in the garden and
help with the maintenance and painting of your home.

In addition, your personal injury may have consequences for your income, such as:

income that is not fully paid (self-employed person, temporary worker, zero-hour contract, etc.)
no more irregular hours allowance
no longer being able to work overtime
missed promotions and
missed pension accrual

Finally, you can consider other equally important personal injury compensation amounts, such as:

Study delay
Reintegration costs for guidance to other work
Costs associated with admission to a hospital or rehabilitation center
Travel expenses
Medical expenses
Non-pecuniary damages
Economic vulnerability
Statutory interest
Furthermore, all costs that you would not have incurred without the accident…
For example, the wages you did not receive because you could not go to work.
Gasoline because you had to go to the hospital or the physiotherapist.
Medicines that were covered by your deductible.

In addition, you are always entitled to compensation for pain and suffering, also known as non-material damages.

This is compensation for "loss of enjoyment of life." Your damages should compensate you for your grief, pain, and anything else that might have made you less happy than before the accident.

Unfortunately, Dutch law is not generous in awarding damages for pain and suffering. Therefore, the amounts awarded in the Netherlands are not considered "fair enough.".

If you'd like to learn more about non-pecuniary damages, click here. If you'd like to learn more about personal injury damages, click here.

Calculating non-pecuniary damages

Calculating non-pecuniary damages:

You are always entitled to compensation for pain and suffering. This is the "non-pecuniary component" of your personal injury compensation.

What is non-pecuniary damages?

Pain and suffering compensation is not in itself a “hard legal term”. It is compensation for damage that cannot be expressed in monetary terms.

So, everything that doesn't fall under additional costs or lost income. It's essentially compensation for your "mental damage.".

How to calculate non-pecuniary damages

People often ask us at the very beginning of their personal injury case how much compensation they are entitled to.

That question is actually impossible to answer. And any personal injury lawyer who claims otherwise is mistaken.

When can you calculate my non-pecuniary damages?

Your compensation for pain and suffering can only be definitively determined at the end of your personal injury case.

Only then will it be known what psychological consequences your injury has had and/or will have for you.

Because it is the psychological consequences that largely determine your compensation for non-pecuniary damages.

Important factors in calculating non-pecuniary damages

Important factors for calculating your non-pecuniary damages include:

the nature of your injury
the severity of your injury
your age
your gender
your level of consciousness
whether you will have permanent scars and where those scars are located
whether you have physical limitations that affect your quality of life
how much pain have you suffered and continue to suffer
how long your recovery period was and
whether you have recovered at all or whether there is permanent damage.

Indication calculation of non-pecuniary damages:

We cannot predict exactly how much your compensation for non-pecuniary damages will be.

What we can do is give you a general indication of the amount of your compensation for pain and suffering.

If this sounds appealing, contact us today for a free, honest consultation. Afterward, you can decide for yourself what to do with it.

We are happy to help you calculate and claim your compensation for pain and suffering and other personal injury damages, such as your additional costs and lost income.

And if you choose our legal assistance, we guarantee you in writing in advance that our assistance will always FREE .

Calculating non-pecuniary damages? Ask for advice! We're happy to help. Want to know more about calculating non-pecuniary damages? Click here.

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