Federal Labour Court, 28.10.2010, 8 AZR 418/09
The principles of the liability rules of the German Civil Code also apply to labour law. However, as even the most careful employee can make liability-relevant mistakes in the performance of their work, case law has mitigated the liability consequences for employees.
This is also necessary because, in principle, the employer determines the working environment and the employee's work equipment. In this respect, the employee cannot be held liable for all errors.
In order to do justice to this working reality, case law has therefore developed a three-tier liability model. This liability model defines the consequences of liability for slight negligence, medium negligence, serious negligence and intent on the part of the employee.
Slight negligence
is deemed to exist if the employee acts in a minor or easily excusable breach of duty. This includes such carelessness that can occur to any employee, such as dropping a company mobile phone. In the case of slight negligence, the employee is generally not liable.
Medium negligence
is given if the employee has disregarded the duty of care incumbent upon him due to a breach of duty, i.e. he should have expected with sufficient effort that his behaviour or omission in breach of duty could lead to damage. In the case of medium negligence, liability is shared proportionally between the employee and the employer.
Various factors must be taken into account, such as the existence of rules of conduct and safety regulations and the employee's compliance with them, the employee's length of service without reproach or the amount of the damage incurred in relation to the employee's earnings.
Gross negligence
According to case law, this is always the case if there is a particularly serious and inexcusable breach of duty by the employee, i.e. if the employee has disregarded those duties of care that were clearly obvious. An example of this would be driving on duty or operating machinery under the influence of alcohol. In the case of gross negligence, the employee is generally liable, although here too the external circumstances are taken into account.
Prefix
is the act of the employee with knowledge and intent (dolus directus or dolus eventualis). In these cases, the employee is fully liable.
In the above-mentioned decision, the Federal Labour Court had to deal with the liability of a cleaner who operated a switch on a magnetic resonance tomograph (MRT) in a joint practice for radiological diagnostics and nuclear medicine without permission and caused considerable damage in the process.
Facts of the Case:
As medical specialists, the plaintiffs ran a group practice for radiological diagnostics and nuclear medicine. Approximately two thirds of the practice's average turnover was generated with a magnetic resonance tomograph (MRT).
Cleaner activates switch on tomograph and causes damage of almost EUR 30,000
The defendant had been employed as a cleaner in the practice for many years and received a monthly gross salary of 320.00 euros. The defendant visited her colleague who lived above the plaintiff's practice premises and was a friend of hers. After the visit, the defendant heard an alarm sound emanating from the tomograph on her way to the front door of the plaintiff's practice.
The wall-mounted control unit of the tomograph had five buttons. Four of these buttons were blue in colour and labelled "host standby", "alarm silence", "system off" and "system on". Above these blue buttons, which were arranged in a square, was a much larger red button labelled "magnet stop" in white.
This red switch was located behind a transparent Plexiglas flap that had to be lifted before the switch could be activated. To switch off the alarm, the defendant pressed the red "magnet stop" button instead of the blue "alarm silence" button provided for this purpose, thereby triggering a so-called MRT quench.
The helium used as a coolant in the appliance was thus discharged into the open air within a few seconds, causing the electromagnetic field of the appliance to collapse.
The repair due after this emergency shutdown took several days and cost 30,843.01 euros net.
The insurance company pays EUR 10,289.34 to the practice per day of absence
Taking into account the contractually agreed deductible, the plaintiff's business interruption insurance paid damages of EUR 10,289.34 for one day of downtime.
The plaintiffs were of the opinion that the actions of the defendant, who had not even been tasked with cleaning the MRT as part of its duties, had been grossly negligent. Although the actions had been caused by the company, liability privileges were therefore ruled out.
Labour court and regional labour court award only minor damages
Contrary to the opinion of the plaintiffs, the Labour Court and the Regional Labour Court considered a liability privilege to exist and only upheld the claim in the amount of six gross monthly salaries of the defendant.
Judgment of the Federal Labor Court:
The court of appeal also recognises a liability privilege for the cleaner
The BAG confirmed the view of the lower courts. The defendant's actions had been prompted by the plaintiffs' business and were based on the employment relationship between the parties.
The special personal commitment of the contractual partners in the employment relationship means that the obligation of both parties to the employment contract to take into account the rights, legal interests and interests of the other party (Section 241 (2) BGB) leads to a large number of ancillary obligations such as duties to refrain and duties to act.
General duties of care, custody, care, information and notification serve to prepare and promote the provision of the main service, to maintain the possibility of performance and to ensure the success of the service.
Cleaner has breached her secondary obligation under the employment contract
By incorrectly pressing the "magnet stop" button instead of the "alarm silence" button, the defendant had breached its secondary obligation under the employment contract not to harm the employer (Section 280 (1) sentence 1 BGB).
As the intended use of the diagnostic device was cancelled for the duration of the repair, the plaintiffs' absolutely protected legal interest in property was also infringed by the defendant's actions.
Since the defendant had acted culpably, namely at least negligently, and the faulty operation was indisputably causal for the damage incurred, the plaintiffs were in principle entitled as co-creditors (in addition to the insurance company) to demand compensation from the defendant (Section 432 (1) sentence 1 BGB).
However, the cleaner cannot be held liable for the entire damage due to the operational nature of her actions
However, taking these principles into account, the Regional Labour Court did not err in law in recognising that the defendant's actions were operationally motivated.
Therefore, the defendant's business-related actions were to be assessed according to the principles of limited employee liability, so that the defendant was not to be held liable for the full amount of the damage.
Source: Federal Labor Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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