- 02 Jun 2015
An employee who was the victim of a work accident is compensated by the employer's work accident insurer, regardless who was actually responsible for the accident (and even if it resulted from the victim's own error). In return for this system of an automatic compensation, the employee can no longer file damage claims against his own employer. This principle is known as the 'civil immunity' of the employer. In a judgement of the Supreme Court of 21 May, this principle has now been slightly adjusted.
The employer's civil immunity is not absolute. One of the exceptions to this principle is the situation in which a work accident has occurred after the employer has previously been given a written formal notice by the inspection services due to serious reaches of the Well-being Act, in which the employer has been, in writing:
- notified about the danger to which he exposed his employees;
- informed of the breaches that were established;
- prescribed adequate measures to remediate the situation;
- and informed that, if he as employer fails to execute the prescribed measures, the victim (or his beneficiaries) has the possibility to introduce a claim in case of a work accident.
In practice, the formal notices sent by the inspection service rarely meet these four conditions, allowing the employer to maintain his immunity.
In a judgement of 21 May 2015, the Supreme Court states that it is not justifiable that the victims can no longer claim damages from their employer, only because the formal notice does not mention the risk of loss of immunity.
Specifically: a victim (or his beneficiaries) of a work accident would as of now be able to introduce a civil damage claim against the employer, as soon as it can be proven that there is a previous formal notice of serious breaches of the well-being at work legislation. It is not required (anymore) that the inspection has expressly pointed to the risk of lifting of the civil immunity in case of non-compliance.
> Action point
Every formal notice of the Inspectorate of Social Regulations has to be followed up promptly, seeing as non-compliance or untimely compliance can lead to the elimination lifting of the civil immunity of the employer in case of a work accident.
Furthermore it is recommended to check whether coverage is provided for that type of civil damage claims of an employee in the terms and conditions of the CL-policy. If necessary, a modification/extension of the policy conditions is required.