RSI symptoms in an employee: employer liable despite a labor dispute!

An employee with a congenital physical disability is off work with long-term RSI symptoms. His employer points to workplace assessments, sports facilities and the employee’s own responsibility. Nevertheless, the employer remains liable for the damage to his health. The Supreme Court has upheld that ruling. When are general measures not sufficient?

What happened?

An employee had been employed by EBN since 2009 and worked as a senior reporting & control specialist. Due to a congenital condition, he had limitations in his left arm and hand and both legs. As a result, he was largely one-handed in his work. His duties consisted largely of computer-based work.

In April 2015, the employee reported RSI symptoms in his right arm and hand. Later that month, he went on sick leave on the very same day that he was informed by his employer that he was considered to be underperforming. He did not return to work, and the employer eventually terminated his employment with the approval of the UWV after two years of sick leave. The employee held his employer liable under Article 7:658 of the Dutch Civil Code. In his view, the symptoms were caused by a non-ergonomic workstation, excessively long working days and excessive work pressure.

Judgement of the Court of Appeal

Both the subdistrict court and the Court of Appeal ruled in favor of the employee. Partly on the basis of an independent expert report commissioned by the subdistrict court, the Court of Appeal ruled that the RSI symptoms had been caused by the working conditions. The employer pointed to other possible causes, including the employee’s congenital disability, the labor dispute and personal circumstances. That defense was unsuccessful. In this case, those circumstances were not regarded as an independent cause of the symptoms, even though they might have influenced their severity and duration. Once an employee has developed RSI symptoms, the other circumstances are, according to both the subdistrict court and the Court of Appeal, no longer relevant.

Furthermore, the employer had failed to fulfil its duty of care. Given the physical limitations and the nature of the work, this employee was at an increased risk of RSI. Specific measures tailored to him were therefore necessary. General facilities, such as a gym and chair massages, were not sufficient. Moreover, these were not readily accessible or effective for him.

Furthermore, the employer had failed to provide sufficient evidence that it had monitored the correct configuration of the workstation and ensured that adequate rest breaks were taken. Precisely because the employee found it difficult to leave his workstation due to his limitations, the employer should not have left this entirely up to him. Nor did his wish not to be treated differently from his colleagues relieve the employer of its duty of care. The Supreme Court upheld this ruling. It is not clear how much the employer must pay, but liability for all damage suffered by the employee as a result of the RSI-related absence and symptoms is now established. This may have far-reaching consequences.

What does this mean for employers?

Although RSI is no longer the number one occupational disease, it remains a significant risk for employees who spend a substantial amount of time working at a computer. This case shows that a general health and safety policy is not always sufficient. For an employee with an increased health risk, a bespoke approach may be necessary. You should therefore assess whether the workplace, tasks and rest periods are suited to the individual’s capacity, and, if necessary, consult the company doctor or a workplace health and safety expert. Ensure that specific risks are given sufficient attention in the risk assessment and translate recommendations into concrete measures.

It does not stop at simply giving instructions or providing aids. You must also check whether measures are actually being implemented and document how this monitoring takes place. The practical lesson: do not just provide a good workplace, but also ensure - in a demonstrable way - that this employee can work there safely.