With the adhesion for damage, which added the employee the employer in execution of operational performing, an in-plant damage reconciliation is to be accomplished. A restriction of the employee adhesion applies to all work, which is compelled by the enterprise and is carried out due to an employer-employee relationship, even if these work is not danger-bent. (Gs BAG 1/89 v. 27.9.94)

Bases

Everyone is responsible for its behavior. This principle applies also in the employer-employee relationship, for the legal relation between employees and employers. In Germany 1 BGB of the debtors has to represent in principle resolution and each form from negligence to after "§ 276 I. It is, it is a mild adhesion certainly or out of other contents of the obligation"… to be taken, "§ 276 I 1 BGB.

In-plant damage reconciliation determines the range of the employee adhesion. The adhesion of the employee is limited depending upon degrees of being to blame for. The employee would be otherwise exposed to the risk to ruin itself with each easy inadvertence and its family financially. The damage risk is part of the operating risk of the employer. The employee is however not always privileged.

Until 1994 the BAG (German Federal Labor Court) had attached the limitation of liability to one "„danger-bent work "“. The term was given up due to doubtful results. Now to "„the activity operationally arranged "“one turns off. This such activities, those were transferred the coworker are work contractual or which it implements in the interest of the employer for the enterprise (Bundesarbeitsgericht|BAG (gs) NJW 1995, 210). The employer is not mechanism, which is to decrease its general life risks to the employee.

Example: If the employee carries e.g. a tool forward home and if it damages there, then it clings without restriction

Extent

The range of the adhesion restriction determines itself according to the degree of the negligence and divided into easiest and/or simple, normal and/or middle and rough negligence. With resolution no limitation of liability is justified. The BAG introduced the Quotelung in such a way specified with normal and/or middle and rough negligence allocation of the adhesion between employees and employers after certain adhesion ratios.

The terms are not any more than the designation of drop's groups. With the terms alone only heavily adhesion restrictions can be justified. The range of the adhesion restriction depends in the result on a consideration of the total circumstances in individual cases. It stands firmly only that the employee does not cling with more easily negligence, with rough negligence usually and with resolution always fully. In the range between them a Quotelung takes place.

Normal negligence

With more normally (= middle) negligence a complete adhesion exemption is rejected. The allocation depends on cheapnesses and Zumutbarkeitsgesichtspunkten. The damage could not therefore always be divided

Criteria are the danger bendingness of the work, the extent of the damage, by the employer taken into account and by insurance a coverable risk, the position of the employee in the enterprise, the height of its pay and perhaps also personal conditions of the employee such as duration of its seniority, age, family conditions and past behavior. Not to be considered however e.g. the membership in the work council may. This would be approximately an offence "§ 78 BetrVG.

Also the Obliegenheiten of the employer are to be considered. So it can be obligated to limit the damage risk by the conclusion of an all risks insurance on vehicles with self participation. If the employer omits the conclusion of an insurance, then the employee clings nevertheless only up to the height of the fictitious self participation. Also the self participation must be however reasonable. This depends e.g. when leading employer arrange a motor vehicle on the current value of the motor vehicle and on earnings/services of the motorist.

Rough negligence

Someone acts roughly negligently, if it hurts the care necessary in traffic unconsidered after the entire in unusually high measure and leaves, which would have had to be clear to everyone in the given case (BAG of 12.11.1998, 8 AZR the 221/97, AP BGB 611 adhesion of the employee No. 117). Is to be considered, which the damage could recognize and furnish after its individual abilities.

Here the employee in all rule is responsible for the entire damage. An adhesion restriction is however possible, if between remuneration and damage a clear disproportion exists. Such a disproportion between damage and earnings/services of the employee does not exist, if the damage which can be replaced lies still clearly below the adhesion upper limit of three gross incomes. This adhesion upper limit is not converted, however in the reform discussion for the delimitation of the employee adhesion as maximum amount was suggested so far. (BAG judgement from 15 November 2001, 8 AZR 95/01 as well as BAG judgement from 12 November 1998 - 8 AZR 221/97).

Example: On an airport of an employee employee in alkoholisiertem condition with 30 tons a heavy de-icer vehicle an accident caused. A damage of 150.000 DM developed. He earned mtl. net 2500, - DM. After the BAG it had 20,000, - DM to replace. (BAG NZA 1998, 140)

Example: In the case of a money transport so-called Safebags was misplaced. The employee had roughly hurt its obligation. The damage amounted to 18,000, - DM, mtl. Gross income approx. 4,000, - DM. An adhesion restriction was answered in the negative. (Landesarbeitsgericht|LAG Frankfurt, Urt. v. 11 February 2000 - 2 SA 978/98)

Example: An employee caused a traffic accident with a vehicle of its employer. It did not consider a red traffic light. It received while driving an official call and from ringing be diverted could. The damage was 6705.05 DM. The employee earned gross 5370, - DM. Here the BAG did not see a disproportion. The adhesion was not limited. (BAG RAILWAYS 1999, 288, (289))

Example: Refuelling a truck with gasoline instead of with Diesel by a helping out driver was classified as roughly negligent. Two thirds of the damage were imposed upon to the truck driver. The remaining third has to carry the employer. (Rhine country Pfalz, judgement from 29 December 2003, AZ LAY: 7 SA 631/03)

'' Example: Adhesion of the occupation motorist for a damage to the engine, because it hurt its work-contractual obligation, by having omitted it before driving the oil level of the truck to control (BGB "§"§ 254, 276 // BAG v.16.3.95-AZR 898/93).

Example: A lady doctor supplied unkompatibles donor blood due to errors of a female patient with an operation. The female patient deceased therefore. The BAG classified a being to blame for because of the acute life endangerment and the virtually not acceptable amassment of errors and omissions as '' negligently. (BAG NZA 1998, 310.312).

'' Example: The Saxonian LAY has the behavior of a truck of driver, while driving its fallen down eyeglasses of the floor space of the truck to waive wanted and thus an accident caused, when rough negligence limits classified, nevertheless the adhesion to three gross monthly wages. In the case of decision the driver had to carry only scarcely for 4,000 "€, although the damage was substantially higher (Saxonian WAS APPROPRIATE of 10.07.2003 - 9 Sa47/03).

Resolution is knowing and wanting illegal success.

Special cases

• Deficiency adhesion

The employee clings fully, with exclusive possession of cash or inventory and with independent activity as representative or a keeper. The coworker is then owner and not only possession servant.

• Change by collective agreement

By collective agreement in-plant damage reconciliation can does not abbedungen to become. With judgement from 5 February 2004 (AZ.: ) the BAG determined 8 AZR 91/03: "„The principles over the restriction of the adhesion of the employee with activities operationally arranged are on one side compelling employee patent right. From them can be deviated neither single nor collective-contractually debited to the employee. "“

Burden of proof

Being to blame for is assumed according to the burden of proof rule "§ 280 I 2 BGB and thereby turned around. The debtor (here: Employee) took over in principle the achievement risk. In the context of the employee adhesion the burden of proof rule is modified to favour of the employee. After "§ 619a BGB the employee clings to obligation injury which can be represented only with one. The burden of proof for this representing having carries the employer. It carries a increased risk because of its organization possibilities.

"§ does not apply for 619 A BGB with exclusive possession of the coworker of cash or inventory and with independent activity as representative or a keeper. "§ 619a BGB reaches only into the framework of the employee adhesion. The burden of proof of the employer is facilitated by a gradated statement load. Because the damaging event is more near because of the employee than at the employer.

The employer must speak first only indications, which refer to adhesion-justifying being to blame for. The employee must express itself then substantiated. Ambiguity goes debited to the employer.

Training relationship

The principles of in-plant damage reconciliation apply also in the training relationship (BAG judgement from 18 April 2002 - 8 AZR 348/01).

Articles in category "Employee adhesion"

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