Employee liability

Article 1382 of the Civil Code, which is the basis of the civil liability regime, provides that any person who causes damage to another person through his fault is obliged to compensate the victim for the damage suffered.

There is one important exception to this rule in employment law. Article 18 of the law of 3 July 1978 on employment contracts enshrines the partial immunity of employees from liability for faults committed during the performance of their employment contract.

The article provides that the employee will only be liable for damage caused to the employer or a third party if he or she has committed :

Fraud refers to intentional misconduct committed in bad faith.

For example, theft of equipment from the workplace, fraud, deliberate damage to property belonging to the employer or a customer in retaliation, misleading a customer about the value or condition of goods, embezzlement, etc.

Serious misconduct refers to negligence which, although unintentional, is so gross and excessive as to be inexcusable. The gross and excessive nature of the fault is assessed in the light of the circumstances in which it was committed (experience of the worker, pace of work, difficulty of the task, pace of work, lack of instructions, etc.).

For example, smoking in a room where flammable materials are stored despite a prohibition sign, causing a traffic accident after running a red light or while drunk, causing an accident after systematically ignoring the company’s safety procedures, failing to comply with clear instructions after having been given formal notice to do so, etc.

Habitual minor negligence refers to negligence that is excusable, i.e. that could have been committed by a normal person in the same circumstances, but which is abnormally frequent.

For example, repeated distraction errors in accounting entry, successive cash desk deficits, systematically leaving the keys in the ignition of an open delivery car during deliveries in town centres, etc.

The employee is therefore not required to bear the consequences of an occasional minor fault.

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Published on 26 October 2023
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