The issue of the liability the employers can face as a result of the acts and/or omissions of their employees is a recurring aspect of employee management in France.
There are no specific employment rules per se governing the extent to which the employers can be held vicariously liable for the acts of their employees. However, the general tort rules applicable in France contain specific provisions pursuant to which a person (or legal entity) is liable not only for the damages he caused by his own behaviour, but also for that which is caused by the behaviour of persons for whom he is responsible (therefore including employers’ liability for the behaviour of their employees).
In this context, the liability of an employer can be triggered provided that:
– there is a fault committed by an employee (or more generally a person under the subordination of the employer) which caused a loss to a third party;
– the employee’s behaviour can be linked to the performance of his/her duties.
The employer can be exonerated from its liability if it can demonstrate that the employee was guilty of an “abuse of office” (“abus de fonctions”). This is generally the case where an employee, acting without any authorisation from his/her employer (whether express or implied), placed himself/herself outside his/her duties, and acted for purposes unrelated to work. In practice however, case law is generally not inclined to exonerate the employer from its liability (even if the employee has committed a penal offence). The ability to benefit from such exoneration is therefore extremely limited and the employer will, in the vast majority of cases, be held responsible for the behaviour of its employees.
The above rules do not mean however that an employee’s liability may not be sought. Case law admits that an employee is still liable for his/her acts when, through his/her actions, he/she exceeded the limits of the missions assigned to him/her (for example in case of penal offence committed intentionally). Such rule is however mainly theoretical as third parties generally prefer to seek compensation from the employer and because employment rules provide that an employee can only be held liable toward his/her employer when it can be demonstrated that he/she has committed a wilful misconduct in the context of his/her duties (meaning that the employee had the intention of causing harm to the employer).