In general, we are all responsible for our own actions. But what happens if an employee harms someone while performing their work duties? Who is responsible: the employee or the employer?
Can employers be held responsible for the fault of employees?
Yes, but under certain conditions. By law, anyone who orders someone else to perform duties on his behalf is legally bound to repair harm caused during the performance of those duties.
The law is strict: once the victim proves that an employee committed a fault during the performance of these duties, the employer is presumed responsible, even if the employer is not at fault.
However, the employee’s fault doesn’t disappear just because the employer is held responsible. For example, Étienne is a lifeguard at a city pool. During his shift, a child drowns while Étienne was on the phone with his girlfriend. His employer could be sued by the child’s parents for the Étienne’s fault. The parents could also decide to sue Étienne at the same time.
When can employers be held responsible?
The victim must prove the following:
1. The person at fault is an employee of the employer being sued.
A person is an “employee” when there is a relationship of subordination between the employer and employee. This generally means that the employer exercises control, supervision or direction over the employee.
Some factors that might show that a relationship of subordination exists are giving orders and instructions on how a task should be performed. An obligation to report on the work performed is another factor.
2. The employee committed a fault.
Generally, a fault is committed when a rule of conduct based on custom, usage or the law is broken. To see whether an employee committed a fault, the employee’s conduct must be compared with that of a careful and diligent person performing the same duties in similar circumstances. For learn more about fault, see our article Civil Responsibility.
Example: To determine whether Étienne, the lifeguard, committed a fault, his conduct must be compared to that of a prudent and diligent lifeguard in similar circumstances. If a judge, after making this comparison, finds that Étienne was not at fault, his employer cannot be held responsible for damages suffered by the parents of the victim.
3. This fault was committed while the employee was performing his duties.
An employee is performing his duties when he is acting on behalf and in the interests of the employer by obeying his employer’s orders or carrying out tasks for which he was hired. An employer could, for example, be held responsible for an employee in these situations:
- The employee performs his duties poorly and his negligence or lack of skill or caution causes damage.
- The employee performs a task that is not exactly the task for which he was hired, but is for the benefit of his employer. This could be the case with an employee who is a receptionist in a repair shop and takes the initiative of repairing something for a customer even though this is not his area of expertise, and it ends up causing harm.
To see whether the employer is responsible, it is also necessary to consider what the employee was trying to accomplish. An employer will probably not be held responsible if the employee’s act was not job-related, even if the act took place at the workplace or during working hours. Example: An employer would not be responsible if an employee took a drill from work to do home renovations and injured someone.
Careful! In some situations, an employer could be held responsible for the fault of an employee even if the employee was not acting in the context of his work or for the benefit of his employer. For example, a bank might be responsible for a bank clerk cheating vulnerable clients if the bank failed to put adequate security measures into place.
What must an employer prove to avoid being held responsible?
An employer must prove one of the following in the list below.
- He is not the employer of the person who committed the fault.
- The employee did not commit a fault.
- The employee’s fault was committed outside of the performance of his duties.
- The damages were due to the fault of the victim.
- An employer can escape responsibility by proving that damages were completely the fault of the victim. The victim might also be found partially responsible. When this happens, the court can rule that the responsibility be shared between the victim, the employee (if relevant) and the employer. This lessens the contribution of the employer.
- The damages were the fault of a third person.
- An employer can completely escape responsibility by proving that the person who caused all the damages was neither the victim nor an employee, but another person.
- The damages were due to an “act of God” (“superior force”).
- An act of God (also known as “superior force”) is an unpredictable and unstoppable event that causes harm or prevents a person from respecting legal obligations. Examples include: a natural disaster, such as torrential rain, an ice storm, a tornado, etc.
Can an employer be held responsible if an employee commits a crime while performing work duties?
Yes. The criminal or wrongful nature of an act does not take away the employer’s responsibility as long as the act occurred during work and related to the tasks for which an employee was hired.
Example: An employer might be held responsible if a dance club doorman, responsible for keeping the peace at a bar, assaults a client while ejecting him from the bar.
Can someone be responsible for volunteers?
Yes. There does not have to be an employment contract for someone to be considered to be an employee.
A judge might consider a volunteer to be an employee if the volunteer is under the orders of another person.
The judge would have to look at all of the facts of the case to draw a conclusion.
Can a victim sue the employer as well as the employee at fault?
Yes. A victim can take legal action against the employee personally as well as against the employer. Nothing stops the victim from suing both at the same time.