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 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.