Employee liability

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In the liability for damage which the workers in execution of operational chores the employer has done in is Germany an in-house damage compensation perform. A limitation of employee liability no longer only applies to hazardous work , but to all work that is initiated by the company and performed on the basis of an employment relationship.

Basics

Everyone is responsible for their behavior. This principle also applies to the employment relationship , the legal relationship between employee and employer. In Germany, according to Section 276, Paragraph 1, Clause 1 of the German Civil Code, the debtor is principally responsible for intent and any form of negligence . Unless a milder liability is determined or can be derived from the other content of the contractual relationship . Even the most diligent worker can occasionally make a mistake that would have been avoidable on its own, but given the human inadequacy, a “typical stray” in working life can be expected for every worker at some point.

The internal compensation of damages determines the extent of the employee liability. The employee's liability is limited depending on the degree of fault . Otherwise the employee would be exposed to the risk of ruining himself and his family financially with every slight carelessness. The risk of damage is part of the employer's operational risk ; within the scope of the weighing up according to § 254 BGB, he must also have his legal and factual responsibility for the organization of the company and the design of the working conditions attributed.

Until 1994, the Federal Labor Court (BAG) had linked the limitation of liability to " dangerous work ". The term was abandoned due to divergent case law between the BGH and the BAG. Now the "operationally initiated activity" is used. These are activities that have been assigned to the employee in an employment contract or that he carries out for the company in the interests of the employer.

Since the modernization of the law of obligations on January 1, 2002, the legislature has dogmatically taken account of the operational risk on the part of the employer from the content of the obligation ( Section 276 (1) BGB new version). This leads to a contractual limitation of liability in favor of the employee. The jurisprudence remains free to stick to the previous dogmatic justification from § 254 BGB.

scope

The scope of the limitation of liability is determined by the degree of negligence and is divided into lightest or simple, normal or medium and gross negligence. No limitation of liability is justified in the case of intent . In the case of normal, medium and gross negligence, the BAG has introduced the division of liability between employee and employer according to certain liability quotas, the so-called quotation.

The terms are nothing more than the designation of case groups. The terms alone are difficult to justify limitations of liability. The extent of the limitation of liability ultimately depends on a weighing of the overall circumstances in the individual case. The only thing that is certain is that the employee is not liable in the case of slight negligence, as a rule in the case of gross negligence and always fully liable in the case of intent. Quotation takes place in the area in between.

Slight negligence

The "slight" (simple) negligence is the mildest level for an insignificant, negligible fault for the employee.

Examples: The coffee cup that a secretary sweeps from the table because she wanted to get the job done too quickly. The work products that accidentally fall into the hands of the employee or the small inattentions in traffic while working.

A comparatively harmless, only a few moments inattentiveness in an everyday situation can cause millions in damages. In the case of an employee breach of duty in working life, taking into account all individual circumstances, employee liability can be excluded in the case of completely minor and easily excusable breaches of duty - which can happen to any employee over time.

Normal (medium) negligence

In the case of normal or moderate negligence, full release from liability will be rejected. The division is based on reasons of equity and reasonableness. The damage will therefore not always be divided in half.

Criteria are the riskiness of the work, the amount of damage, a risk calculated by the employer and covered by insurance , the position of the employee in the company, the amount of his remuneration and, under certain circumstances, the personal circumstances of the employee such as length of service, age, family relationships and previous Behavior. Membership in the works council, for example, may not be taken into account . This would be a violation of § 78 BetrVG.

The employer's obligations must also be taken into account. He may be obliged to limit the risk of damage by taking out comprehensive insurance with a deductible . If the employer fails to take out insurance, the employee is still only liable up to the amount of the notional excess. The deductible must also be reasonable. This depends, for example, on the current value of the motor vehicle and the earnings of the driver when driving a motor vehicle as directed by the employer .

Gross negligence

Someone acts with gross negligence if he violates the due diligence required in traffic to an unusually high degree after all the circumstances and ignores this, which in the given case should have been clear to everyone. In doing so, it must be taken into account what the injuring party was able to recognize and achieve according to his or her individual abilities (cf. § 611 BGB: Employee liability).

As a rule, the employee is liable for the entire damage. Limitation of liability is possible if there is a clear disproportion between compensation and damage. Such a disproportion between damage and earnings of the employee does not exist if the damage to be compensated is still well below the liability upper limit of three gross earnings . This upper liability limit has not yet been implemented, but was proposed as a maximum amount in the reform discussion to limit employee liability.

example

An airport employee was drunk and caused an accident with a 30-tonne de-icer vehicle. This resulted in damage of 150,000 DM. He earned a net monthly income of 2500 DM. According to the BAG, he had to pay 20,000 DM.

example

So-called safebags are lost when transporting money . The employee had grossly violated his duty. The damage amounted to DM 18,000 and the gross monthly income was around DM 4,000. Limitation of liability was denied.

example

An employee caused a traffic accident with a vehicle belonging to his employer . He ignored a red light. He got a business call while driving and let himself be distracted by the ringing of the doorbell. The damage was 6,705.05 DM. The employee earned 5370 DM gross. The BAG saw no disproportion here. Liability was not limited.

example

Refueling a truck with petrol instead of diesel by a temporary driver was classified as grossly negligent. Two thirds of the damage was inflicted on the truck driver. The employer has to bear the remaining third.

example

Liability of the professional driver for engine damage because he violated his contractual obligation by failing to check the oil level of the truck before starting the journey (§ § 254 , § 276 BGB).

example

Due to hair-raising mistakes, a doctor added incompatible donor blood to a patient during an operation . The patient died as a result. The BAG has classified the fault as “grossly” negligent due to the acute danger to life and the absolutely unacceptable accumulation of errors and omissions.

example

The Saxon LAG has classified the behavior of a truck driver who tried to pick up his glasses from the footwell of the truck while driving and thereby caused an accident as gross negligence, but limited his liability to three gross monthly wages. In the decision case, the driver only had to bear just under € 4,000, although the damage was much higher.

Intent is the knowledge and will of illegal success, i. H. a purposeful, deliberate act to harm someone. Here the employee is to be made fully liable if he recognizes the possibility of the violation of legal interests and accepts it.

special cases

  • Liability
  • Change through collective agreement

Internal compensation for damages cannot be waived through a collective agreement. In its judgment of February 5, 2004 (AZ .: 8 AZR 91/03), the BAG stated: “The principles governing the limitation of the liability of the employee for work-related activities are unilaterally mandatory employee protection law. They cannot be deviated from in individual or collective agreements to the detriment of the employee. "

Employee liability in public service

Until September 30, 2005, the liability of employees in the public sector was limited to intent and gross negligence by referring to official liability (Section 14 BAT ). This was no longer the case as of October 1, 2005 under the collective agreement for the public service (TVöD). The general liability criteria now applied to employees in the public sector (federal and local). In the course of renegotiations on the TVöD (so-called "Restantenliste"), an agreement was initially reached on the previous liability privilege on October 1, 2006, but this was suspended by the employer until further notice for overriding collective bargaining reasons. As part of the collective bargaining agreement of March 31, 2008, the liability privilege has now been reintroduced and now regulated in Section 3 Paragraphs 6 and 7 TVöD; Section 3 (7) TVöD now refers again to the civil service regulations for federal employees. In the area of ​​the state administrations, the TV-L retained the old BAT regulation from the start, see Section 3 (7) TV-L.

Church service according to AVR-Caritas

In the case of employees in the church service with employment contracts according to the AVR-Caritas , liability is limited to damage caused by grossly negligent or willful breach of official duties (Section 5 (5) AVR-Caritas).

Burden of proof

The rule on the burden of proof in Section 280 (1) sentence 2 BGB is modified in the case of employee liability in favor of the employee. According to § 619a BGB, the employer must (present and) prove that the employee is responsible for the breach of duty, i.e. H. is in debt. ( Reversal of the burden of proof ). The undetectable is therefore at his expense.

Apprenticeship

The principles of in-house compensation for damages also apply to training relationships (BAG 8 AZR 348/01 of April 18, 2002).

literature

  • Bernd Schwab: Liability for damages in the employment relationship - an overview . Part 1: NZA-RR , 2006, p. 449; Part 2: NZA-RR , 2006, p. 505.

Individual evidence

  1. ^ BAG GS 1/89 of September 27, 1994; BAGE 70, 337 -AP No. 101 on § 611 BGB liability of the employee; BAG 8 AZR 159/03 of April 22, 2004
  2. ^ Order of the Grand Senate of the Federal Labor Court of September 27, 1994, file number: GS 1/89
  3. See decision of the Grand Senate of the Federal Labor Court of September 27, 1994, file number: GS 1/89 ( Memento of the original of July 18, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  4. draft law of the federal government. Draft law to modernize the law of obligations . BT-Drs. 14/6857 of August 31, 2001 (PDF) p. 48
  5. BAG, judgment of November 12, 1998, Az .: 8 AZR 221/97, AP No. 117
  6. cf. BAG, judgment of November 15, 2001, Az .: 8 AZR 95/01
  7. BAG, judgment of January 23, 1997, Az .: 8 AZR 893/95, NZA 1998, 140
  8. ^ LAG Frankfurt , judgment of February 11, 2000, Az .: 2 Sa 978/98
  9. BAG DB 1999, 288, (289)
  10. ^ LAG Rhineland-Palatinate, judgment of December 29, 2003, Az .: 7 Sa 631/03
  11. ^ BAG, judgment of March 16, 1995, Az .: AZR 898/93
  12. BAG, judgment of 25 September 1997, Az .: 8 AZR 288/96
  13. ^ Sächsisches LAG, judgment of July 10, 2003, Az .: 9 Sa47 / 03