Employee liability

In principle, employees are clearly privileged in their liability towards the employer compared to the normal principles of law of obligations. The legislator assumes that a corresponding privileging of the employee is appropriate because the employer basically bears the business risk. The risks associated with the organisation of his business are therefore in principle imposed on him.
In principle, all employees of the enterprise, the trainees and, as a rule, also the borrowed temporary workers can invoke the corresponding liability privileges. In contrast, freelancers who are not personally dependent on the employer do not generally enjoy a corresponding liability privilege. The regulations on employee liability represent mandatory employee protection law. In this respect, it is not possible to deviate from these regulations at the expense of the employee within the framework of the employment contract or even a collective bargaining agreement.

Employee liability and the three-step theory

Employee liability/ Pöppel Rechtsanwälte

If damage has occurred in the company which has been caused by an employee, the question of his liability towards the employer is governed by the so-called three-step theory. This theory assumes that the employee is not obliged to pay damages in case of slight negligence. In the case of normal or medium negligence, the damage caused is usually divided proportionally between the employee and the employer, taking into account the overall circumstances. Only if the employee can be accused of gross negligence or intent will he or she have to bear the total damage under certain circumstances.

The decisive factor for employee liability is therefore always an overall assessment of the individual case. In order to determine the employee’s share of liability, five essential factors are always taken into account. The following points are decisive:

• The degree of fault (slight negligence, medium negligence, gross negligence or intent)
• The amount of the damage incurred
• The amount of the employee’s remuneration
• The hazardous nature of his activity

The question of whether the damage involves a risk calculated by the employer or covered by insurance.
In addition, the courts usually also take into account the employee’s personal circumstances, such as his or her age, family circumstances or length of service.

Within the scope of the burden of proof, it is incumbent on the employer to present and prove the employee’s breach of duty, the extent of his or her fault and the damage actually incurred. If, on the other hand, the employee wishes to invoke the conditions of limited employee liability, he must also prove in the event of a dispute that the damage was caused in the course of an activity initiated by him in his business.

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