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Legal - Partnerships | publié par CJE, Lawyers, Business Consultants | 25.11.2024

Employee liability for damage to the employer

To what extent is an employee liable for damage caused to his or her employer? Between contractual obligations, professional risks and duties of care, the law defines a precise framework for assessing this liability. Discover the applicable rules and the precautions to take to prevent disputes in this article written by our partner CJE, Avocats, Conseillers d’Entreprises.

Art. 321e CO – Liability of the employee: “the employee is liable for the damage he or she causes to the employer, whether intentionally or through negligence”.he worker is liable for the damage he causes to the employer intentionally or through negligence”.

The degree of diligence incumbent on the worker is determined by the contract, taking into account the professional risk, the instruction or technical knowledge required to perform the work promised, and the aptitudes and qualities of the worker that the employer knew or ought to have known.

 

An employment contract gives rise to reciprocal obligations:

  • the employee must perform his/her duties diligently (art. 321a CO, 6 al. 3 LTr, 11 OPA);
  • the employer must organize work in such a way as to enable employees to work under suitable conditions (art. 328 CO, 6 LTr, 82 LAA).

The employee is liable for damage caused to the employer intentionally or through negligence (art. 321e para. 1 CO). The employee is liable only if the following conditions are met: breach of contract, damage, fault and an adequate causal link between the breach of contract and the damage. The causal link is deemed adequate when:

  • the employee’s unlawful conduct is likely – in the ordinary course of things and according to the general experience of life – to produce or favour the occurrence of the result considered between the act and the said damage;
  • the employee can be accused of intentional or negligent misconduct (ATF 115 IV 241, c. 3).

The conditions of article 321e of the Swiss Code of Obligations cannot be waived to the detriment of the employee (art. 362 of the Swiss Code of Obligations); for the employee to be held liable, all the conditions listed above must therefore be met.

Full compensation by the employee is subject to gross negligence (any action which, through culpable recklessness, disregards or ignores the foreseeable consequences of his or her behavior) or intent. The degree of diligence incumbent on the employee is determined by taking into account..:

  • occupational risk (risk inherent to the tasks entrusted to the employee);
  • the education and/or technical knowledge required to perform the agreed work;
  • the skills and qualities of the employee that the employer knew or should have known (art. 321e para. 2 CO).

The employer, for his part, is obliged to organize the work so that it can be carried out under acceptable conditions. The employee’s liability may therefore be reduced, or even eliminated altogether, if he or she can prove that the employer was at fault and/or not at fault. The Swiss Federal Court (ATF 4A_599/2013) has ruled that the employee is not liable if the employer orders or tolerates the behavior that caused the damage.

 

For an employee to be held liable for damages, he/she must have committed a fault, i.e. a breach of the duties imposed by the Contrat: he/she must not have acted in accordance with what could be expected. The fault may be:

  • intentional: the employee voluntarily violates an obligation;
  • negligence: the employee has failed to exercise due care.

To assess whether an employee is at fault, we must refer to art. 321e para. 2 CO (see above), which determines the degree of diligence expected. It is accepted (ATF 123 III 257, c. 5) that when the employee accepts, without necessarily intending it, that his or her behaviour may cause damage to the employer, this is sufficient to establish an intentional breach (possible fraud).

Case law and legal doctrine distinguish between serious, moderate and slight misconduct. This classification has important consequences in terms of compensation for damage by the employee (art. 43 para. 1 CO). Serious misconduct
Serious misconduct occurs when an employee’s conduct is objectively or subjectively inexcusable. In principle, intentional misconduct constitutes gross negligence. Negligence, however, can also constitute gross negligence, when the perpetrator has violated the most elementary rules of prudence, by neglecting precautions that would have been required of any reasonable person. Slight misconduct
Slight misconduct is characterized by objective behavior or subjective shortcomings which would have been expected of any reasonable person, but which, while not acceptable, are not particularly reprehensible. Average fault
Average fault is defined negatively as fault that is neither slight nor serious.

 

The employee responsible for the damage must pay damages to the employer, the amount of which is determined according to the general rules of civil liability (art. 99 para. 3 CO and 42 ff CO). In principle, the employee must make full reparation for the damage caused, but in reality, the amount of damages is very often reduced, sometimes even drastically. The extent of compensation can be measured:

  • depending on the circumstances and the seriousness of the employee’s misconduct (art. 43 al. 1 CO);
  • taking into account any concomitant fault on the part of the employer (art. 44 al. 1 CO);
  • in accordance with the measures listed in art. 321e para. 2 CO (occupational hazard, employee’s education, technical knowledge required to perform the job, skills and qualities of the employee that the employer knew or ought to have known).

In practice, the main criteria for determining the amount of compensation are: the salary, the seriousness of the fault (art. 43 para. 1 CO) and the professional risk inherent in the activity (art. 321e para. 2 CO). The judge may, however, take into account other factors such as:

  • the existence of a concomitant fault on the part of the employer (art. 44 al. 1 CO);
  • the duration of the employment relationship;
  • the employee’s hierarchical level;
  • employee training;
  • the employee’s professional experience;
  • the employee’s civil liability record, if any;
  • instructions given to the employee;
  • control by the employer;
  • the existence of concomitant misconduct on the part of a colleague;
  • the existence of concomitant fault on the part of a third party;
  • the amount of the damage;
  • the employer’s financial situation;
  • a possible state of distress or need on the part of the employee;
  • the foreseeable or extraordinary nature of the offending event;
  • the employer’s ability to cover the risk with liability insurance.

 

The amount of the salary is one of the most important criteria in determining the extent of the employee’s liability for damages. According to case law, the amount of damages awarded must be proportionate to the employee’s remuneration, at least when the fault is not serious and the damage is particularly significant. In practice, therefore, the judge has a wide discretionary power, and decides “in equity” (art. 4 CC – ATF 110 II 349, c. 6b).

 

Compensation for damage caused by an employee therefore depends on many factors, and each case must be examined on its own merits. The forward-thinking employer will take a number of measures, including the following:

  • train its employees;
  • instruct the employee with regard to the activity entrusted to him/her;
  • check compliance with instructions;
  • lay down rules in the employment contract;
  • examine the possibility of covering the risk with liability insurance;
  • document the employee’s liability history.

This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.

 

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