top of page

Duty to complain in employment law: much ambiguity

A person who receives a performance from another must examine with due diligence whether it complies with the obligation. If it does not comply, the recipient, the creditor, must also notify the other person, the debtor, of this with due diligence. That is the idea behind Article 6:89 of the Civil Code (hereafter BW). The Supreme Court confirmed in 2013 that this duty to investigate and complain applies to all obligations, so also in labour law. In disputes about, for example, payment of the correct salary for the work performed, this duty can play an important role. Recently, there have been court rulings on this duty. The line from these judgments is the subject of this blog post. After reading it, you will know what is the latest line in the judgments of judges in this area.

How soon the creditor should complain depends on the circumstances of the case. Thereby, it can be said in general terms that the more closely the performance resembles a satisfactory performance meeting expectations, the less quickly an investigation should be expected. Moreover, the question of how complicated and costly an investigation would be plays a role. The interests of the debtor must also be taken into account.

It is up to the debtor to invoke Section 6:89 of the DCC. If he does not, the court may not consider it on its own initiative. If the debtor does and his appeal succeeds, this leads to a lapse of the creditor's right of action. Failure to complain in time can therefore have far-reaching consequences.

Until a few years ago, the general line in the literature was that the duty to complain does not relate to the obligation to pay a sum of money, because the duty to complain was only intended for cases where there was a defect in quality and therefore not when too little was delivered or paid.

Meanwhile, views on the applicability of the duty to complain differ more. In the literature, for example, it is argued that the legislator did not limit the scope of the duty to complain, or at least did not limit it sufficiently clearly, to assume that it would not apply to monetary claims.

What does seem to be agreed on is that the obligation exists only when the performance was defective, and therefore not when it failed completely. This makes sense, because if nothing has been delivered, nothing can be investigated and therefore there is no such thing as a complaint that can be made in response to the results of that investigation.

Until five years ago, a majority of employers' reliance on the duty to complain in a monetary claim was rejected on the grounds that the duty to complain would not apply to such claims. A new analysis of case law has since been made on this point. The main aspects are discussed below.

Duty to complain

Also in the 2017-2022 period, the majority of cases rejected appeals to the duty to complain because the courts did not consider it applicable to wage claims (or other monetary claims). The reasons given varied. The three main reasons are: 1) failure to pay (part of) wages should be regarded as the failure to perform (in whole or in part), i.e. not defective performance, and thus the duty to complain does not apply; 2) the employer did not depend on a complaint to establish that he had complied with the obligation to pay a sum of money he (should) already have been able to establish this on the basis of his own information - e.g. a report following an industrial accident; and 3) the question in dispute was about which obligation had to be performed, not whether it was defective or not.

There were also cases in which the court did find the duty to complain applicable. In most cases in this category, reliance on the duty to complain was then overruled because it failed. Among other things, importance was attached to the complexity of the issue, the position of the employee and the answer to the question to what extent the employer's interests had truly been harmed. For instance, whether the employer is aware of questions in the workplace about, say, pension matters may be a factor. Another factor that matters is whether the employee consults an expert.

In three cases, the invocation of the duty to complain did succeed. One of these cases is not further explained. In the second case, the employee blamed the employer - among other things - for incurring certain expenses without permission and misappropriating funds. The employee claimed damages. However, the employment contract had been terminated several years earlier on the basis of a settlement agreement by mutual consent. This did not include a final discharge clause. According to the court, the employer could have known about the claims during the employment and failed to make an explicit reservation regarding the compensation. In these circumstances, the employee was entitled to trust that he would no longer be sued; the employer was too late. The latest case sees employees claiming back pay for overtime after the end of their employment in a café, among other things. The starting point, as agreed in the collective labour agreement, was that overtime would not be paid in money but in free time. In practice, this was also adhered to. Thereupon, the court found that there were no good grounds to exclude wage and related claims from the scope of the duty to complain in situations where there was an obvious defect in performance for the employee. In other words, the duty to complain applied. However, the court did rule that it should be tested with restraint. This (partly) because the law seeks to protect the employee in his unequal position towards the employer. As this particular case involved the use of structural hours and pay slips from which it could be seen that they were normally paid, it would have been in the employees' path to complain from the moment they could see that not all overtime was being paid. By not doing so in time, they deprived their employer of the opportunity to compensate the hours in time or otherwise. In other words, the employer suffered a clear disadvantage due to the non-timely complaints. On that, the court upheld the reliance on the duty to complain.

Employer liability

When an employee suffers damage because the employer breaches its duty of care, he can hold the employer liable. Case law suggests that the duty to complain also applies to the employer's duty of care. If such an appeal succeeds and the employee thus failed to complain in time, this may have far-reaching consequences: the employee then loses his claim and can no longer claim compensation.

For a successful reliance on the duty of complaint in the context of the employer's duty of care, a number of aspects are important. The first issue is whether the employee knew (or should have known) about the duty of care. The mere fact of a workplace accident seems insufficient to argue that the employee should have realised that it could be due to a breach of the employer's duty of care. As a result, the employee is only obliged to investigate when he is aware of the duty of care and has reason to believe that this duty has been breached. A second aspect is whether the employee is aware of the injury after the workplace accident. If the injury does not manifest itself immediately, this may stand in the way of a successful reliance on the untimely complaint. Moreover, the employer's actions also play a role. As a rule, an employer who is aware (or should be aware) of a workplace accident will take action himself, for instance by launching an investigation. As the accident becomes more serious, this duty is more obvious and will carry more weight. If the employer fails to do so, the consequences cannot be held against the employee.

In conclusion

No unambiguous line can yet be found in case law on the duty to complain in employment law. In any case, there seems to be no reason to categorically exclude the duty to complain from employment law. In turn, the courts seem to want to give some protection to employees so that it is not easily assumed that an employee has complained untimely. Even where the employer's liability is concerned in the context of its duty of care in accidents at work, the relevant facts and circumstances of the case must be considered.

Do you have a question regarding employment law? If so, feel free to contact one of our lawyers.


bottom of page