Mishaps at work: When the employee is liable

Dents on the customer's car, paint splashes on the carpet: When small or large breakdowns occur at work, the question arises as to who is responsible.

This article is part of the special feature "What you as a boss in the trades need to know".

Ramona K. is desperate: Her boss called and scolded her. He accuses her of damaging a customer's freshly stripped parquet flooring. Now everything has to be redone. The apprentice isn't guilty of any wrongdoing. Although she sanded the baseboards in the customer's apartment, she was careful and also covered the parquet floor – just as her trainer had taught her. After the boss's call, she's afraid he'll withhold her pay or even fire her, as he threatened her with consequences.

"Don't worry," reassures Matthias Herold, specialist lawyer for employment law in Cologne, "There is established case law on this. Employees are liable for damages during work only according to the degree of their negligence." There is a clear gradation, depending on how – to put it bluntly – careless the employee has been.

The entrepreneur is responsible for the risks of his business and should be well insured. But he doesn't have to answer for everything his employees do. "The law recognizes the levels of slight, moderate, and gross negligence – and also intentional misconduct, but that doesn't involve mishaps," explains expert Herold.

The general rule is: Anyone who acts with slight negligence is not liable at all. This includes everything that can be summarized under the motto "it can happen to anyone." This is the case when someone tips over a coffee cup in the office and spills it on their work documents. Or when a pastry apprentice accidentally bumps into their boss in the bakery, causing the boss's cream cake to fall off the tray. Damage that occurs in this way is part of the employer's business risk, and the employee is not required to compensate for it. The courts call this "minor errors that can happen to anyone."

The boss may be partly to blame

In cases of moderate negligence, liability is shared between the employee and the employer. As a rule of thumb, one can say: "It doesn't happen to everyone, but it's still understandable." The extent of the employee's share of liability depends on the circumstances of the individual case, but it is usually less than half. The risk inherent in the work, the so-called hazardous nature of the activity, is also taken into account. Someone who handles a welding machine or works high up on a scaffold is more likely to cause damage than a secretary at a desk. The courts have also limited the amount of employee liability: To ensure that their livelihood is not jeopardized, employees are limited to paying a maximum of one gross monthly salary.

"The boss can also share the blame here," Herold says. "For example, if the equipment is defective. Or if he or she doesn't organize the business well enough." This is the case when employees aren't adequately checked for their qualifications, machines aren't maintained, or there's a shortage of staff.

In cases of gross negligence, the employee is generally liable for the entire damage. Gross negligence occurs when someone fails to exercise due care that is obvious to everyone, i.e., when their behavior practically provokes a "How could someone?" For example, in an accident caused by drunk driving or running a red light, or even refueling a truck with gasoline instead of diesel. This is how courts have ruled in the past.

"Limitation of liability is possible, however, if there is a significant disproportion between compensation and damages," explains specialist attorney Herold, "with the limit set at three gross monthly salaries." Even in cases of gross negligence on the part of the employee, liability relief may still be available.

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Special standards for trainees

Special standards apply to apprentices: "The work must correspond to the level of training," emphasizes Herold. The trainer must clearly formulate their assignment, instruct the apprentice in the use of machines, and ensure that they work correctly.

The apprentice's age also plays a role. If Ramona K. in our example was overwhelmed by the task assigned to her, she can't be blamed. And her boss's threat to withhold her training allowance is a bluff: Such an offset is only permitted by law if the allowance exceeds the garnishment limit, i.e., more than €1.073,88 (not including statutory maintenance obligations). However, since most training allowances are far lower, offsetting is prohibited by law.