The new reform of the Civil Code, scheduled for 1 January 2025, could increase employees' personal liability towards third parties in the event of fault. Employers need to understand the implications of this so that they can better anticipate the risks involved in dealing with third parties.
What are the current regulations on employees' civil liability?
The civil liability of employees for faults in the performance of their employment contracts is currently largely limited by the principle of the employee's immunity from liability.
In the event of a civil fault committed during the execution of the employment contract, the employee will only be liable for his or her wilful misconduct, gross negligence or habitual minor negligence. This limitation of liability applies to all claims for compensation, whether for damage caused to a third party or to the employer.
Given the principle of ‘civil immunity’, employers can currently be held liable for damage caused by one of their workers to a third party, such as a temporary worker, a sub-contractor's worker, etc.
What impact will these new regulations have on
employees?
As things currently stand, if a third party approaches employees directly and is potentially liable, that employee is protected by the ‘quasi-immunity of the executing agent’. However, from 1 January 2025, the law expressly provides that ‘auxiliaries’ may be held liable towards third parties.
This means that there is an increased risk - a priori - that an (auxiliary) employee will be personally and directly concerned by a third party who has suffered damage.
Is there any way for employees to escape this potentially increased responsibility?
The following protections exist if an action is brought by a third party against an employee:
- Of course, he or she can always defend himself or herself against the third party by invoking his or her immunity if he or she has committed an occasional minor fault in the performance of his or her employment contract.
- He or she may invoke the same defences against the third party as his or her own employer may invoke against the third party.
Example: a contract concluded between the employer and a third party (for example with customers or suppliers) contains a clause excluding recourse against the company's employees who would be individually liable.
- He or she may invoke, with regard to the third party, an automatic assistance/exemption clause in the event of direct claims by third parties, which would have been provided for in his or her own contract with his or her employer. The employee may then invoke these clauses to call his or her employer as a guarantee.
Marjolaine Dessard – Senior Associate Claeys & Engels
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