An employee's liability
An employee works for his or her employer under an employment contract. This employment contract often does not mention anything about the liability of this employee.
Usually, one does not question this until the employee makes a serious mistake that causes damage to the employer or to a client. After all, as an employer, you are always civilly liable to a client who suffers damage due to a mistake made by your employee during work. At that point, as the employer, you naturally wish to recover these damages from the employee. But can this be done just like that?
In this Wanted Fact, we discuss employee liability and the impact of the new liability rules applicable since January 1, 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?
Since January 1, 2025, the former principle of ‘quasi-immunity for performing agents’ has disappeared from Belgian liability law. This quasi-immunity meant that a third party could only hold the performing agent liable if there was no contractual fault. Thus, as far as the employee was concerned, in case of fault under the employment contract, the third party could never hold the employee liable. The third party could only hold the employer liable for this mistake and the resulting damages.
This rule has been abolished since January 1, 2025. Consequently, this means that an employee is no longer protected against a direct claim by a third party for a contractual fault.
Of course, in that case, the employee can still invoke the above rule from the Labour Contract Act, in particular that he is not liable in case of a slight, accidental error. Both rules therefore coexist.
This ensures that a client in which the employee has made a serious mistake can hold both the employee concerned and the employer liable to compensate for his losses.
Employers can contractually exclude this extra-contractual liability of their employees towards third parties, except in the case of intent to harm or if the harm is a result of a breach of physical or psychological integrity. In all other cases, therefore, as an employer, you can choose to protect your employees from third-party claims in your agreements with those third parties.
For example, you can explicitly include in your agreements with customers, suppliers... or in your general terms and conditions that this contracting party cannot directly hold your company's appointees (including your employees) liable.
What in case of a criminal offence by your employee?
If your employee commits a criminal offence, your employee will always be personally liable for the damage caused by this offence.
The limitation of liability under the Employment Contracts Act does not apply in cases of criminal liability. In that case, victims will be able to directly hold the employee liable for the damage caused.
However, if the criminal offence is committed during work, you as the employer will be civilly liable for your employee. In other words, the employer will have to vouch for the civil consequences of the criminal offence. This liability applies, for example, to the fines to which the employee would be sentenced.
A well-known example is the fine imposed by the police court following a speeding violation during working hours. Both the employee and the employer will be ordered to pay it. However, if you as the employer pay the fine, you will in principle be able to recover it from the employee.
Contact Wanted Law!
If you have additional questions on this subject, do not hesitate to contact us. Our specialists are at your service!