When can you claim damages from your employee?
If one of your employees causes damage while carrying out their labour contract, you cannot automatically claim that damage from them.
The law limits the personal liability of employees to three situations:
- Fraud;
- Gross negligence;
- Repeated minor fault.
You can only hold your employee liable for the damage if one of these situations applies. It is not enough that damage has happened. You must also prove that your employee’s fault fits into one of these legal categories.
Fraud
Fraud means your employee acts deliberately and with the intention to cause damage.
Example: one of your employees deliberately damages or destroys company property. For example, an employee who, out of frustration after a conflict with their manager, throws a company computer to the ground.
Gross negligence
Gross negligence is a very serious fault that a normally careful person would not make in the same situation.
Example: an employee smokes in a storage room with flammable products, despite a clear no-smoking rule. If this causes a fire or damage, it can be seen as gross negligence.
Repeated minor fault
An employee can also be held liable if they repeatedly make the same careless or negligent mistake. A one-time error is usually not enough. The faults must happen again and again.
Example: A cashier who repeatedly causes cash register errors because of inattention.
Our tip: Always carefully document repeated faults. Keep evidence of the facts, the instructions you gave, and the damage caused. This way, you can prove the fault happened repeatedly.
How do you claim compensation?
Even if fraud, gross negligence, or repeated minor fault is involved, you cannot decide yourself how much your employee must pay. The compensation amount must be agreed with your employee or, if there is a dispute, decided by the court. Only then can you claim the damage effectively.
Are you allowed to deduct the damage from the salary?
If your employee caused damage, you may not simply deduct that damage from their salary. The law protects employees from unfair wage deductions. Usually, a deduction for compensation per salary payment may not be more than one fifth of the nett salary due at that time. This ensures the employee keeps most of their salary.
There are two important exceptions:
- when the employee committed intentional fraud;
- when the labour contract ends before the full compensation has been repaid.
Our tip: Never make a wage deduction without your employee’s prior agreement or a court decision. Also check that the wage protection rules are correctly applied. If in doubt, contact your Legal Advisor.
What if a third party suffers damage?
A third party is anyone not involved in the labour contract, such as a customer, supplier, colleague, or visitor. If your employee causes damage to a third party during work, their personal liability is still limited to fraud, gross negligence, or repeated minor fault.
Read more: "Reform of your employees' liability"
What is best to do in case of damage?
Carefully document the facts and the damage and collect all relevant evidence. Then check if fraud, gross negligence, or repeated minor fault applies, hear your employee, and record any agreements in writing. Finally, check if a wage deduction is legally allowed and notify your insurer quickly if third parties are affected.
Does the bankers' oath affect the liability of your employees?
Employees in the financial sector take a “bankers' oath”. By this, they promise to perform their duties honestly, carefully, and professionally.
However, the bankers' oath does not create new civil liability. The rules on limited employee liability stay the same.
An employee can still only be held personally liable in cases of fraud, gross negligence, or a repeated minor fault. But breaking the conduct rules behind the bankers' oath may lead to disciplinary sanctions.
Depending on the seriousness, this can mean a warning, reprimand, temporary suspension, or a professional ban.
Read more: "Questions and answers (FAQs) about the bankers' oath and the disciplinary regime for banking service providers | FSMA"
Our tip: Make sure your employees covered by the bankers' oath know the conduct rules. Following these rules does not change the legal limits of employee liability but can affect disciplinary decisions.
To help you, Securex offers a model annex to the labour regulation. Request this from your Legal Advisor via MyHr@securex.be
What does Securex do for you?
Do you have questions about your employees’ liability or are unsure how to handle a damage case? Contact your Legal Advisor via myHR@securex.be.
