An employee's liability
An employee works for their employer under an employment agreement. That agreement often says nothing about the employee’s liability.
Usually, this raises no questions until an employee makes a serious mistake that causes damage to the employer or a client. As an employer, you are in principle civilly liable to a client who suffers damage as a result of a mistake made by your employee while working. At that point, as the employer, you will naturally want to recover that damage from the employee. But can you do so?
In this Wanted Fact, we discuss employee liability and the impact of the new liability rules that have applied since 1 January 2025.
The general rule
The Employment Contracts Act regulates the relationship between the employer and the employee. This law also regulates the employee's liability.
Article 18 of the Employment Contracts Act specifically states:
‘In case the employee causes damage to the employer or third parties in the performance of his contract, he shall be liable only for his fraud and serious fault.
For slight fault, he is liable only if it occurs with him habitually rather than accidentally.’
Specifically, an employee is only liable for an error if there is fraud, serious fault or a slight mistake that he regularly makes (not a coincidence). This limitation applies both to the employer (contractual), and to third parties, such as a customer of the employer (non-contractual).
In the case of a slight accidental error, you as the employer cannot claim liability from the employee and cannot seek compensation.
The legislator inscribed this limitation to protect employees from the normal risks involved in performing an employment contract.
Contractually, you cannot deviate from this limitation of liability either. If you do contractually provide for a broader liability of your employee, this contractual provision is void and cannot be invoked. Only a collective labour agreement can deviate from this rule.
So, for example, you cannot simply write into your cashier's employment contract that he is responsible for cash shortages. Such a clause is null and void and will therefore have no effect.
Your employee has made a mistake for which he is liable, what then?
If your employee has made a serious mistake, committed fraud or is guilty of a regular slight mistake, you may hold him liable for the damages caused.
In the case that the employee acknowledges his mistake and agrees to compensate the damage, it is best to enter into an agreement with your employee in which you determine the compensation and provide the payment modalities.
However, if the employee disputes his mistake, things become more difficult. In that case, you will have to initiate court proceedings to have the employee's liability established. The court will then also estimate the applicable damages.
After the compensation is established, you will have to recover it from the employee.
Can a third party hold your employee liable?
For facts capable of giving rise to liability that occurred from 1 January 2025 onwards, the former principle of “quasi-immunity for auxiliary persons” has disappeared from Belgian liability law. Before that date, an employee acting as an auxiliary person was in principle protected against a direct extra-contractual claim by the employer’s contracting party for damage arising from the performance of that contract.
Since 1 January 2025, the employer’s contracting party, such as a client, may in principle bring a direct extra-contractual claim against the employee for a mistake made in the performance of the contract.
In that situation, the employee may of course still rely on the above rule from the Employment Contracts Act, namely that they are not liable in the event of an accidental slight mistake. In addition, within the limits set by law, the employee may also invoke certain defences arising from the agreement between the employer and that contracting party. The two rules therefore exist alongside each other.
This means that a client who has suffered damage as a result of an employee’s gross mistake can bring a claim against both the employee concerned and the employer to obtain compensation.
In its agreements with clients, suppliers or other contracting parties, the employer may include a clause excluding or limiting direct extra-contractual claims against its agents, including employees. The scope of such a clause depends on its precise wording and is in any event limited, including in cases of intentionally caused damage or damage resulting from an infringement of physical or psychological integrity.
You can therefore explicitly state in your agreements with clients, suppliers or in your general terms and conditions that the contracting party may not bring a direct claim against the persons acting for your company, including your employees.
What in case of a criminal offence by your employee?
A criminal offence may have both criminal and civil consequences. The employee may be personally criminally liable where the conditions of the offence are met.
The limitation of liability in the Employment Contracts Act does not protect the employee against criminal prosecution or a criminal penalty. However, for civil compensation owed to victims, the application of that limitation of liability must be assessed separately.
The employer may also be civilly liable for damage caused to third parties by an employee while working. This does not mean, however, that the employer must automatically pay every criminal fine imposed on the employee.
Specific rules do apply to certain offences. For example, where a road traffic offence is committed in the performance of the employee’s duties, the employer may be civilly liable for payment of the fine imposed.
Whether, and to what extent, the employer can subsequently recover a paid fine or compensation from the employee depends on the specific circumstances and the applicable legal rules. A deduction from salary always requires a valid legal basis and cannot simply be made unilaterally.
Contact Wanted Law!
If you have additional questions on this subject, do not hesitate to contact us. Our specialists are at your service!