An employer bears a great deal of responsibility. The duty of care and the resulting liability for an accident at work is a well-known example of this. Furthermore, the employer may also be liable for damage to third parties, for example, because an employee causes damage to a parked car while sandblasting. This is what we strict liability . The employer must then compensate for material damage. However, personal injury falls under the employer's obligation to compensate.
Strict liability of the employer
For the employer to be liable, it is primarily required that the employee acted incorrectly and unlawfully . In addition, there must be a functional connection between the incorrect and unlawful conduct and the work. The employee must therefore perform a task under the control of an employer . Note, however, that mistakes made during breaks, when there is still control, are also at the employer's expense. Only in exceptional cases will the employer not be liable.
When is the employer not liable?
This is primarily the case when the third party who suffered damage also committed an error themselves, for example by parking their vehicle where a parking prohibition applies and where adequate signage is provided. In such cases, no compensation be awarded to the third party, or the compensation may be awarded partially, for example because the protective measures were insufficient.
In cases of intent or conscious recklessness on the part of the employee, the employer will still have to compensate the third party for the damage. In that case, however, the employer may recover the compensation from the employee. Intent is often easy to establish. In the case of conscious recklessness, on the other hand, there is more room for discussion.
This concerns situations where an employee knowingly engages in risky behavior and is aware of the risks. However, even when an employee is in a state of intoxication and is unaware of their actions, there may still be a case of conscious recklessness. Awareness of the intake of the narcotics is sufficient, provided the employee knows that this entails risks. Mere carelessness may not suffice, but this depends on the factual circumstances.
Contractually limit liability
Fortunately, as an employer, you can often take steps to limit liability risks. While it is not permitted to include deviating agreements in the employment contract , it is possible in agreements with third parties.
For example, you can include an exoneration clause stating that you are not liable for damage caused by staff. The third party will then be unable to hold the employee liable and will be left empty-handed. Such a clause is not customer-friendly, but in practice, it is frequently included when employees are seconded to another employer.
The lending employer then no longer has control over the employee and naturally does not want to be liable for damage caused by the employee to a client of the borrower. Therefore, the agreement often includes a clause requiring the borrower to indemnify the lending employer or the employment agency against liability. In that case, it is the borrower who must compensate the third party for the damage.
Do you have questions about this matter, or do you want to limit liability for employee errors? Then discuss it with one of our experienced employment lawyers.
