The risk of running a business is borne, in principle,
by the employer. However, this does not preclude
the employer from seeking compensation from an
employee where the latter’s culpable and unlawful
conduct results in damage.
An employee who, as a result of the non-
performance or improper performance of his or her
duties, has caused damage to the employer may be
held financially liable. The basis for the employer’s
liability is the individual’s culpable conduct as
assessed in the context of intentional fault or
unintentional fault. Unintentional fault may involve
grave negligence or recklessness, and its key
characteristic is that the employee concerned had
no direct intent to cause damage to the employer,
but damage has nevertheless occurred due to the
negligent conduct of that individual. In contrast,
intentional fault exists where the employee
deliberately intends to cause damage to his/her
employer or when, having foreseen the possible
occurrence of damage, the employee allows it to
happen. The extent of the employee’s liability to
the employer depends on the nature of the
individual’s fault (whether his/her conduct is
intentional or unintentional). When the fault is
unintentional, the employee’s liability is limited to
the amount of damage caused, which may not to be
higher, however, than the amount of three months’
remuneration to which the individual concerned is
entitled on the date on which the damage is
caused. In addition, the employee may be held
liable for the damage only within the limits of the
actual loss suffered by the employer and solely for
the normal consequences of the action or
negligence that resulted in the damage. This means
that the employee is not liable for, for example, the employer’s loss of profit consequential to the
damage inflicted. The situation is different when it
comes to the intentional fault of the employee. In
such a case the individual employee must make
good the damage up to its full value. Unlike in the
case of damage caused unintentionally, this means
that the employee is also held liable for lost
profits. The final criterion that must be met for the
employee to be held liable to the employer is the
presence of a causal link between the individual’s
action or omission and the damage that has
occurred. If no such link can be established, then
the employee does not bear any liability for the
damage, for obvious reasons. An employer who
intends to enforce its rights before the courts needs
to keep in mind that the burden of proving the
facts justifying the employee’s responsibility, that
is the culpability of the latter’s action or omission,
the form of fault (intentional or unintentional), the
amount of the damage caused, and the causal
relationship between the damage and the
employee’s conduct, rests with the employer.
The above rules also apply to situations where the
employee has caused damage to a third party, the
difference being that it is the employer who is
exclusively responsible for making good such
damage, and only subsequently is the employer
entitled to a recourse claim against the employee.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.