Jurilo by Lawise.ai:
In an employment relationship, it can happen that an employee causes damage to the employer – whether through negligence, breach of duty of care, or even intentionally. But when is an employee actually liable for damage? What legal requirements apply in Switzerland? And how high can a compensation claim be? In this article, you will learn when compensation claims against employees are permissible, what limits apply, and how courts assess such cases.
PRINCIPLE: EMPLOYEE LIABILITY (ART. 321E CO)
The legal basis for compensation claims against employees is found in:
It states: The employee is liable for damage caused to the employer intentionally or negligently. However, liability is not unlimited – it depends on the degree of fault, the type of work, and the risk of the activity.
REQUIREMENTS FOR COMPENSATION CLAIMS AGAINST EMPLOYEES
For an employee to be held liable, the following requirements must be met:
1. Breach of Contract or Duty
The employee must have violated a contractual obligation – e.g., through improper operation of machinery, disregard of safety regulations, or unexcused absence.
2. Damage
The employer must have suffered concrete financial damage – e.g., repair costs, lost profits, contractual penalties to third parties.
3. Causal Connection
There must be a direct connection between the breach of duty and the damage.
4. Fault
The employee must have caused the damage intentionally or negligently. In cases of slight negligence, liability is severely limited.
DEGREES OF FAULT AND EMPLOYEE LIABILITY
The extent of liability depends on the degree of fault:
Slight negligence: e.g., careless mistakes → usually no or very limited liability
Moderate negligence: e.g., repeated carelessness → partial liability possible
Gross negligence: e.g., serious disregard of regulations → full liability possible
Intent: e.g., theft, sabotage → full liability, possibly also criminal consequences
CONSIDERATION OF ROLE AND RISK
Courts consider the following when assessing liability:
the training and experience of the employee
the type of activity (e.g., high-risk or simple)
the organizational structure of the company (e.g., unclear instructions, lack of supervision)
Example: An apprentice is held to a less strict standard than an experienced department head.
OFFSETTING COMPENSATION AGAINST WAGES – WHAT IS PERMITTED?
According to Art. 323b para. 2 CO, the employer may only offset compensation claims against the attachable portion of wages – unless the damage was caused intentionally. In this case, unlimited offsetting is permitted.
LIABILITY FOR IT ERRORS / DATA LOSS / OPERATING ERRORS
Even in cases of IT errors (e.g., data deletion, misconfiguration), employees are only liable for gross negligence or intent.
BURDEN OF PROOF FOR COMPENSATION CLAIMS
The employer must prove:
that damage has occurred
that the employee caused it through fault
that a causal connection exists
Without clear evidence, a compensation claim is not enforceable.
STATUTE OF LIMITATIONS
Compensation claims arising from employment relationships generally become time-barred after 10 years (Art. 127 CO). In cases of intentional damage, the period may be longer under certain circumstances.
CONCLUSION
In Switzerland, employees are only liable for damages if they caused them through fault. Liability is limited and depends on the individual case. Employers should document compensation claims thoroughly, while employees should not simply accept unjustified claims but have them legally reviewed.
👉 Is your employer demanding compensation?
Jurilo checks whether the claim is legally permissible – structured & legally sound.
👉 See also: Wage Reclaims by the Employer – When Is It Permitted?
👉 Related: Dismissal After Workplace Conflict – Legal Classification
👉 Basics: Employee Obligations in the Employment Contract (CO)
FAQS ON COMPENSATION CLAIMS AGAINST EMPLOYEES
When is an employee liable for damage?
When they cause damage to the employer through intentional or negligent conduct – e.g., through breach of duty, violation of duty of care, or misconduct.
Do I have to be liable for every mistake?
No. In cases of slight negligence (e.g., careless mistakes), employees are generally not liable or only to a very limited extent.
What is the difference between negligence and intent?
Negligence means that someone was careless. Intent means that someone caused the damage deliberately – e.g., through sabotage or theft.
How high can a compensation claim be?
This depends on the degree of fault, the employee's role, and the amount of damage. In cases of gross negligence or intent, the full amount of damage can be claimed.
Can the employer simply deduct the damage from my wages?
Only within the legal offsetting limits. The non-attachable portion of wages is protected – except in cases of intentionally caused damage.
What if I didn't cause the damage alone?
Then liability can be divided proportionally – e.g., in cases of shared fault by other employees or organizational deficiencies in the company.
Does the employer have to prove the damage?
Yes. The employer bears the full burden of proof for damage, breach of duty, causation, and fault.
Can I contest a compensation claim?
Yes. You can dispute the claim and demand that the employer substantiate it. In case of dispute, the labor court or conciliation authority decides.
Is there a statute of limitations?
Yes. Compensation claims arising from employment relationships generally become time-barred after 10 years.
What can I do if I receive an unjustified claim?
Seek legal advice and respond in writing. Do not accept wage deductions without having the claim reviewed. If necessary, contact the conciliation office for labor disputes.
