Employee Liability: Free Legal Advice!

Questioner

An employee keeps more than a hundred euros of his own money at work. He does this because, as a salesperson, he regularly runs out of change. He therefore keeps an amount in small denominations as change. The employer is not aware of either the change problem or the solution chosen by the employee. His colleagues do know, and they advise him against it. The employee does it anyway because he does not know of any other solution and he thinks it works well. One morning it is discovered that there has been a break-in. The safe where the employee keeps the change is empty. The employee asks if the employee wants to reimburse the money. Is the employee liable?

Lawyer

It is quite possible that the employee himself is also to blame for the damage he suffers. The employee can only not seek redress from the employer if his fault is so serious that the fault of the employer pales in comparison. This concerns damage that is mainly caused by intent or deliberate recklessness of the employee himself (Article 7:658-2 of the Dutch Civil Code). Deliberate recklessness means that the employee engages in risky behavior, while he is aware of the risk he is taking. If an employee does not ensure that certain risks are excluded, this does not mean that he consciously accepts these risks. Being aware of the risk should not always be taken literally, because driving while drunk can also be seen as deliberate recklessness. Carelessness in itself will usually not be sufficient to assume deliberate recklessness. If the employer's fault is not negligible compared to the employee's fault, the employer must fully compensate the damage. It is explained above that this applies if the employer has not taken the required measures against dangers that must have been known to him at the time when the danger led to damage, while the damage would not have occurred to its full extent if the employer had taken the required measures. The intent or deliberate recklessness of the employee must be proven by the employer if he wants to avoid liability. Article 658 (BW) 1. The employer is obliged to arrange and maintain the premises, tools and equipment in or with which he has the work performed in such a way and to take such measures and provide such instructions for the performance of the work as are reasonably necessary to prevent the employee from suffering damage in the performance of his work. 2. The employer is liable to the employee for any damage suffered by the employee in the performance of his work, unless he demonstrates that he has fulfilled the obligations referred to in paragraph 1 or that the damage is largely the result of intent or deliberate recklessness on the part of the employee.