Traffic offences during the performance of the employment contract: who pays the bill?
– Principle of civil liability: art. 67 Law on Road Traffic
If an employee commits a traffic offence or causes damage to a third party as a result of a traffic accident, he/she is personally liable in criminal matters. The employee will therefore be liable for the payment of fines as a result of the offence, whether committed during working hours or during private time.
However, under Article 67 of the Law on Road Traffic, the employer may be held civilly liable for fines and legal costs incurred by the employee in connection with road traffic.
This liability of the employer is purely civil in nature. The employer is therefore not considered to be the perpetrator of the traffic offence. This rule is simply a payment facility for the Treasury: its sole purpose is to provide the State with additional guarantees for the collection of road traffic fines.
The application of Article 67 also requires that the traffic offence be committed during the performance of the employment contract.
It has been judged that the employer cannot be held civilly liable for a fine incurred by his employee on the way to work because the employee was not yet under the authority or supervision of his employer at that time.
It is therefore up to the judge to determine on the basis of the facts whether the employee was at his employer’s disposal at the time the traffic offence was committed.
– Limitation of civil liability applicable to the employee, not to the employer: art. 18 Law on Employment Contracts
If the employee causes damage to the employer or to a third party (e.g. in the case of a traffic accident) during the performance of the employment contract, the employee may, according to Art. 18 of the Law on Employment Contracts, only be held liable in case of deceit, gross fault or slight fault, if the latter is of a habitual rather than accidental nature.
“Deceit” means intentional fault, consciously and deliberately disregarding an obligation. Gross fault involves unintentional fault but so serious that it is not excusable. Habitual fault requires that the employee has already been involved in a traffic accident several times or has disregarded the traffic regulations on multiple occasions.
A traffic offence does not automatically imply gross fault within the meaning of Article 18 of the Law on Employment Contracts. Nor is the fatal outcome of an accident a decisive factor in assessing the seriousness of the fault.
The following have been qualified as “gross fault” by case law: running a red light, crossing a solid white line, driving a vehicle while drunk, leaving the keys in the ignition, causing an accident by driving at excessive speed, causing an accident by performing a dangerous overtaking maneuver.
The following were not considered gross fault: neglecting the priority to the right rule and minor exceeding of the speed limit. Performing a dangerous reversing maneuver with a truck on a construction site, causing the death of a worker present at that time, was considered to be negligence/inattention, not gross negligence.
However, Article 18 only deals with the civil liability and not the criminal liability of an employee in the performance of his or her employment contract. This means that the employee remains fully liable for criminal acts committed, but that it is possible that the employer may be held civilly liable for fines imposed on the employee (the abovementioned Article 67), irrespective of whether the fault committed by the employee is considered gross fault.
The employer cannot therefore hide behind the employee’s gross fault to try to avoid paying the fines and costs incurred by the latter.
However, if the employee causes damage to a third party as a result of a traffic accident, in most cases the civil liability insurer will intervene.
– Payment and recourse
However, an employer who has paid a traffic fine for his employee has the right to recover the amount from the employee, even if the employee has committed only a slight fault.
It is therefore perfectly legal to include a clause in the employment contract stipulating that the employee himself is responsible for paying the fines and that the employer can recover the fine and the costs paid in his capacity as a civilly liable person.
However, if the employer does not recover the fines paid, the payment made will be considered as a benefit in kind in favor of the employee. In this case, the employer will be obliged to pay social security contributions on these sums. However, these amounts will be deductible as business expenses.
Want to know more?
The Racine Liability and Insurance team will be happy to assist you.