Hello! In this article we will talk about the liability of the employer.

Today you will learn:

1. What is the liability of the employer;
2. How is it reimbursed, and in what cases;
3. What documents are required for its reimbursement.

What is the liability of the employer to employees

Each employee of any enterprise, when hiring, gets acquainted not only with the conditions of the work process, but also with his financial responsibility. Employees should be aware of when the employer is fully financially responsible to them.

As liability the employer to the employees is understood as the obligation to compensate for the losses caused. The main legislative act regulating relations in the field of compensation for harm is the Labor Code. Chapter 38 of the Labor Code of the Russian Federation contains a list of cases in which the head is obliged to immediately resolve the issue of providing compensation.

However, in the course of the work process between the employer and his employees, documents may be signed that clarify the points of their financial responsibility. These conditions are prescribed in or in an additional agreement. Moreover, their norms must comply with the law, and the degree of responsibility must also be maintained.

Conditions under which the liability of the employer comes:

• If in the process labor relations, illegal actions were committed on the part of the head;
• If, as a result of the actions of the manager, the employee is harmed to health or personal property.

The occurrence of such conditions indicates that the employee can apply to the organization in which he works with a request to compensate for the damage caused on a voluntary basis. If his application is refused, then the victim has the right to prove his case in court.

Types of full liability of the employer

The legislator indicated only two conditions under which the full liability of the employer to the employee comes. But if you study them in detail, it turns out that their content is much more voluminous.

The employer's responsibilities include:

• Compensation for damage as a result of which the employee is unable to perform his job duties. Such situations are described in Art. 234 TK.
• Article 235 of the Labor Code states that the employer is obliged to compensate for the damage caused to the employee's belongings. For example, with the consent of an employee, he used his car for official purposes and caused damage to him. In this case, the manager must compensate for the costs associated with the repair of the car.
• Art. 236 of the Labor Code contains information that if the employer did not pay the employee wages or other mandatory payments on time, and as a result he suffered damage, then the manager must take measures to eliminate the consequences of such a situation.
• Compensation for damages due to the occurrence of moral damage.

Let's take a closer look at each of these types of liability.

Depriving an employee of the opportunity to work

The cases in which the employee cannot perform his direct labor duties include:

1. Illegal dismissal, suspension from work duties, transfer to another place of work;
2. Unwillingness to restore, delay in the restoration of the employee at the previous workplace. In the event of such a case, the employee must have a decision of the state labor inspectorate;
3. Retention of employee documents. For example, work book. It is important to check for records. It should not contain information on illegal dismissal.

The presence of these circumstances leads to the impossibility for the employee to get a new job, which means that he has no income. The employer is obliged to fully compensate for the damage caused.

Financial responsibility of the employer in case of damage to the property of the employee

The employee's property includes things that he has on the right of ownership or under a lease agreement. The harm that can be caused to them is damage, damage, loss, etc.

Moreover, damage can be caused not only by regular employees, but also by those who carry out labor activity contract of employment, or civil liability, and act on behalf of the organization. In any case, the damage caused to the property of the employee must be fully compensated.

The victim appeals to the management with a request to restore the harm caused. Within 10 working days, the employer considers and takes appropriate actions to resolve the issue of compensation for harm.

If the employee’s application is left without consideration or the amount of compensation does not suit him, then the employee always has the right to apply to the judicial authorities.

Compensation for damages by the employer in case of delay in wages and other payments

Delay wages and other payments remains the most topical issue to date.

Other payments include:

• vacation pay;
• Payment for unused vacation. Usually it is carried out upon dismissal;
• Providing compensation for pregnancy, childbirth and child care;
• Others.

Moreover, the legislator has set the deadlines for the provision of such payments. For example, wages must be paid at least 2 times a month on the days set by employers, vacation pay - 3 days before the vacation, etc.

In case of non-receipt of money, the employee can apply to the state labor inspectorate or to the Supreme Court. If the employee terminated the employment contract, then he must apply within a period of not more than 3 months from the date of the delay.

In cases where the employee continues to work, then the period of his appeal is unlimited in time, because the circumstances of the delay in payments are of a long-term nature.

Do not forget that the employer is obliged to reimburse not only the amount of payment, but also compensate each day of delay at the established refinancing rate of the Central Bank of the Russian Federation. The amount of the delay is paid to the employee together with the amount of the principal debt.

It is also worth noting that an employee who has not been paid wages has the right not to go to work until the debt is completely eliminated. Notify the employee of the possibility of settlement with him, the employer must in writing. If such a notification has been received, then the employee is obliged to go to work and begin his work duties the next day after receiving the notification.

Responsibility of the employer in case of moral damage to the employee

Moral injury - this is the onset of moral and physical suffering from the illegal actions of the employer.

For example, the organization refused to conclude an employment contract or pay overtime work, or there were cases of admission of insults of a religious nature, etc.

According to the law, the issue of compensation for non-pecuniary damage must be resolved as a result of an agreement between the parties. If it is impossible to achieve it, then the only way out is to go to court.

When determining the amount of monetary compensation, both the degree of the employer's fault and the level of moral or physical suffering of the victim are always taken into account. The employee is obliged to provide evidence to the court that he has suffered moral damage.

These may be:

• Information about the disease resulting from nervous state from the current situation;
• Difficult financial situation due to delayed wages;
• Other moments.

A summary of the types of financial responsibility of the employer to employees is presented in the table:

As practice shows, in reality, everything is quite different. Many workers, not knowing their rights, are in no hurry to restore justice or do not apply for it due to many life situations.

For example, the fear of losing a job, dragging out time until retirement, there is no way to find another job. The employer often takes advantage of such circumstances and allows violations of the rights of employees.

Employer liability claim

Any appeal by an employee to the organization must be supported by an appropriate document. The process of compensation by the employer for the harm caused to the employee begins with the writing of a statement by him. Usually it has an arbitrary shape. In it, the employee must state in detail the whole essence of the issue, and indicate in what form he wants to accept compensation. The head cannot leave such a document without consideration; moreover, the legislator has set a deadline for resolving the issue for him.

The legislation of Russia strictly enshrined the obligation of the employer to pay wages to employees in a timely and complete manner. If the employer decides on violations in this area, then he will face serious checks and fines for the damage caused. The Labor Code approached the material liability of an employee to the owners and management of enterprises less strictly. However, an employee should not completely neglect the nomes of Chapter 39 of the Labor Code.

Basic regulations

Despite the fact that the employee, in fact, has more opportunities to harm the employer, detailed list the code does not contain such types of damage. Article 238 of the Labor Code of the Russian Federation implies that the material liability of the employee occurs only for direct actual damage. This means that the employer can only claim compensation for damaged or lost material or financial assets. In order for the management not to try to lay responsibility on employees for hypothetical costs, in the form of lost profits, the same article clearly prohibits demanding such things from team members.

The material damage caused by the employee must be tangible, and expressed in a physical decrease in the number of valuables or deterioration in their condition, Art. 238 of the Labor Code of the Russian Federation.

In recent years, the authorities have been happy to use such a method of moral influence on the minds of employees as a promise to bring them to financial responsibility for disclosing trade secrets. To increase the vigilance of employees and prevent the spread of inside information, the employer often classifies things that are not at all related to such information as secret. For example, the amount of salary or bonuses, the composition of the founders or registration data. It should be understood that only internal reporting data, tender offers or proposed promotional activities, data on technologies, models and designs, and the like are subject to non-disclosure. But, even if this information became known to a hired person, this is not a reason to try to punish him financially. Necessary condition In order to be held liable, there will be an obligation to prove several facts:

• the employee was in possession of the information, was aware of its special status and gave a signature on its safety;
• transferred it to unauthorized persons (accidentally or intentionally);
• the data used caused the company real material losses.

But even in this case, the court will analyze the degree of guilt and qualify the severity of the employee’s misconduct, until its decision is made, only disciplinary liability can be applied.

If, nevertheless, the illegal use of commercial information is proven, and even with signs of personal gain, then the employee risks falling under Art. 183 of the Criminal Code of the Russian Federation, which states not only the application of impressive fines, but also real imprisonment.

Collect all, or cases of full liability

Learned - work or compensate

Today, it is not uncommon to find an employer who cares about improving the skills of their employees. Investing in specialist training has become a common practice, but as soon as modern education costs decent money, the management also needed means of protection against dishonesty of trainees. Article 249 of the Labor Code is intended to regulate this moment of labor relations, which allows an employer who has spent financial resources and time on training personnel to demand their compensation if the employee fails to fulfill obligations for mandatory work.

If an employee violated the contract on obtaining a specialty at the expense of the company and quit before graduation without good reason, then the entire amount spent during the years of study is subject to recovery. If the term of working off is violated, then the amount calculated in proportion to the unworked time is reimbursed.

There is damage, but no liability

But even the established actual damage and its culprit do not always mean that the employee will be held liable. In the event of a force majeure or risk of life for the employee himself or several, especially if the person has done everything possible to preserve property, such damage cannot be recovered, art. 239 TK.

The same article also implies one more reason for the employer to refuse attempts to collect the cost of stolen or damaged materials from the employee. If the management neglects its obligations to ensure the conditions for storing valuables, then even the specialist who signed the documents on their preservation will not be financially responsible for their loss. For example, if the employer discloses information about security methods, admits strangers to the territory of the warehouse, or refuses to repair locks and install bars in a timely manner, the storekeeper will be able to prove in court his innocence in the discovered shortage and avoid paying their cost.

Blame the employee, but the employer will answer

In addition to direct damage in the form of theft or equipment breakdown, an employee can also harm indirectly: damage property owned by the counterparty, but transferred to the preservation of his company. In this case, the employer of the negligent specialist will have to pay the full cost of the damaged materials (Articles 402 and 1068 of the Civil Code of the Russian Federation), and then decide how to get the costs incurred from the offender (Chapter 39 of the Labor Code). So, if the atelier spoiled the fabric or made a mistake with the size, the customer will rightfully demand a refund from the management of the sewing enterprise. All attempts by the employer to remove responsibility from the organization and step aside will be illegal, since the court will consider the studio as the executor, and not a specific seamstress. How relations between the authorities and the person hired to perform the work will develop in the future, the customer will not be affected.

The duty of the employer is to prove the amount of damage and establish the guilt of the employee

The fact of causing material damage can be established both situationally (appeal of a counterparty, emergency, report of a materially responsible person), and during planned activities (inventory). But fixing this state of affairs is not enough to present financial claims to the employee. First, you need to conduct an audit and comply with the established Art. 247 TC procedures:

1. Create a new or convene an existing commission at the enterprise, designed to establish the amount of damage, its causes and perpetrators.
2. Define quantitative composition missing property and its value (based on accounting registers or current market valuation).
3. Find out the circumstances of the damage and the circle of those involved.
4. Demand written explanations from all those potentially responsible for causing harm. If the employees refused to write them, then this should be recorded in a separate act.
5. Assess the degree of guilt of the employee or the participation of each member of the team, taking into account extenuating circumstances that allow waiving the claim for compensation payments, art. 240 TK. As a rule, the salaries of all the perpetrators are also taken into account.
6. Based on the results of the check, draw up an inventory list or a defective act.
7. Familiarize the guilty employee with the materials of the audit and take into account his objections.
8. Issue an order (instruction) to bring the employee to liability.

It should be noted that the inspection is the direct responsibility of the employer. If he evades it, but does not give up his intention to financially punish the employee for damaged property, the indiscriminately accused person can not only ignore the demands of his superiors, but also apply to the court to protect his interests.

In the process of checking and determining the amount of losses, the employer has the right to refuse claims against the employee, or partially reduce them, based on the employee's explanations or the specific circumstances of the incident, Art. 240 of the Labor Code of the Russian Federation.

Procedure for payment of material damage

If all the formalities for establishing the amount of financial losses of the enterprise and the circle of persons responsible for them are observed, there comes a time when the funds must be legally withheld from the income of employees and documented their withdrawal.

Voluntary payment for damages

IN rare cases reaching an agreement between the employee and the employer on voluntary reimbursement of costs incurred by the company to restore material assets or settle relations with counterparties, it will be necessary to conclude a written agreement. The guilty employee is obliged to pay the amount of damages. Moreover, there will not be a restriction established by Art. 138 TK. The contract may imply a full one-time deposit of money into the cash desk or to the current account of the enterprise, and the repayment of debt in installments, and even a separately agreed amount that does not correspond to either accounting data or market information. The validity of the signed contract does not terminate with the termination of the employment relationship and will continue even after dismissal.

Unfortunately, often such agreements are not fully implemented or they are abandoned without starting payments on them. In this case, the employer has only one way to bring the employee to liability - going to court for the truth.

Arbitrage practice

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

Material liability- the type of legal liability of a party to an employment contract for damage caused to the other party by guilty illegal actions (or inaction).

Terms of liability are:

1) illegality of the action (inaction) of the employee;

2) the presence of direct actual damage;

3) a causal relationship between the actions (inaction) of the employee and the harm caused;

4) fault of the employee (in the form of intent or negligence).

Liability of the employer to the employee includes:

1. The obligation of the employer to compensate for the harm caused to the employee as a result of illegal deprivation of his opportunity to work.

Such an obligation, in particular, arises if the earnings are not received as a result of:

Illegal removal of an employee from work, his dismissal or transfer to another job;

Refusal of the employer to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee in his previous job;

Delays by the employer in issuing a work book to an employee, entering into the work book an incorrect or inconsistent wording of the reason for dismissal of an employee.

2. The obligation of the employer to compensate for the damage caused to the property of the employee.

3. The obligation of the employer to compensate for the moral damage caused to the employee.

4. The obligation of the employer to compensate for the damage caused to the employee as a result of the delay in payment of wages and other payments due to the employee.

Material liability of the employee to the employer

The employee is obliged to compensate the employer for the direct actual damage- a real decrease in the employer's cash property or deterioration in the condition of the specified property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties.

Types of employee liability:

1) complete - occurs in cases specified in the law (Article 243 of the Labor Code of the Russian Federation);

2) limited - occurs in all cases, except for cases of full material liability specified in the law within the average monthly earnings of an employee;

3) collective (team) - can be introduced when employees jointly perform certain types of work related to storage, processing, sale (vacation), transportation, use or other use of the values ​​transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude with him an agreement on compensation for damages in full size.

Circumstances excluding material liability of an employee are:

1) force majeure;

2) normal economic risk;

3) emergency;

4) necessary defense;

5) failure by the employer to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.

Unfortunately, in our time, disputes between employees and employers arise quite often, and one has only to “ask” google to give results for the query “employers' lawlessness” and the search engine will offer several hundred thousand results. This suggests that the topic of employer's responsibility is quite relevant and many people ask themselves questions every day about whether the employer acted lawfully in relation to them in this or that situation and how they can protect their rights. Naturally, this leads to the fact that the issue of responsibility is also acute among employers, whose rights are sometimes infringed no less.

Understanding this topic can be quite difficult and to protect your rights it is better to contact qualified lawyers. However, in general, everyone needs to navigate this issue, and in order to help both parties understand it, the Faculty of Medical Law has prepared a series of articles “Employer's Responsibility”.

In this article we will consider the general provisions regarding the responsibility of the employer to the employee. The rest of the articles can be found at the links below:

Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains an indication of the involvement of persons guilty of violation labor law, to five types of responsibility. Among them, applicable to the employer, four can be distinguished (with the exception of the disciplinary one):

• material
• civil law
• administrative
• criminal

First of all, if we talk about the responsibility of the employer to the employee, then we mean material and civil liability. As for administrative and criminal liability, it arises from the employer to the state. However, often such responsibility comes just for violation of the labor rights of the employee. Therefore, in this series of articles, we will also briefly consider these two types of responsibility.

Disciplinary responsibility can only come from the employee, therefore, there is no place for it in the article.

General provisions on the liability of the employer are contained in section XI of the Labor Code of the Russian Federation. The essence of liability is obligations of a party to an employment contract(in our case, the employer), causing damage to the other party(in our case, an employee), repair this damage.

According to Art. 233 of the Labor Code of the Russian Federation for the onset of liability, the following conditions must be met:

• the presence of property damage to the injured party;
• unlawfulness of the action (inaction) that caused the damage;
• causal relationship between the illegal act and property damage;
• guilty of committing an unlawful action (inaction), unless otherwise expressly provided for by the Labor Code or otherwise federal law.

Chapter 38 Labor Code four grounds for the occurrence of the liability of the employer are considered:

1. unlawful deprivation of an employee of the opportunity to work,
2. damage to his property,
3. delayed salary and other payments,
4. causing moral harm to an employee.

Read more about the obligations and consequences for the employer caused by such circumstances in the articles "", "".

Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of employer's responsibility to the employee takes place in cases where he is responsible for the specified violation according to the norms of not labor, but civil legislation.

In this case, the mechanisms for protecting the rights of an employee are reflected in Articles 15 and 151 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and consists in the following rules:

• An employee whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
• If moral harm (physical or moral suffering) is caused to a citizen by actions that violate his personal non-property rights or encroach on non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the duty monetary compensation said harm.

As we can see, the civil liability of the employer, as well as material, consists mainly in the imposition of property sanctions on him. In this regard, these two types of responsibility are often confused and even combined. According to some legal scholars, material liability is, in fact, civil law (S.S. Alekseev, S.N. Bratus, R.O. Khalfina, etc.).

More about distinctive features material and civil liability of the employer to the employee you can read in.

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In addition to the workers themselves and trade union bodies, the observance of labor legislation and the rights of workers is also monitored by supervisory authorities. In this regard, employers sometimes have to answer for the committed offenses not only to employees, but also to the state.

Well, if you manage to get off with only one administrative punishment, for example, a fine. But there are cases when the violations of the employer are so great that the guilty person can even be held criminally liable.

The administrative responsibility of employers is established by the Code Russian Federation on administrative offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). Mandatory element the occurrence of such liability is the presence of fault.

Article 2.2 of the Code of Administrative Offenses of the Russian Federation distinguishes two forms of guilt:

• Intention - an administrative offense is recognized as committed intentionally if the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and desired the onset of such consequences or knowingly allowed them or treated them indifferently;
• Negligence - an administrative offense is recognized as committed through negligence if the person who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds, presumptuously counted on preventing such consequences or did not foresee the possibility of such consequences, although he should have could have foreseen them.

You can read more about the main violations of employers in the field of administrative law, as well as the sanctions provided for such offenses, in the article "".

Criminal liability of the employer may occur in case of violation of the constitutional rights of citizens, prescribed in Art. 37 of the Constitution of the Russian Federation: “Labor is free. ... Forced labor is prohibited. ... Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination ... Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours established by federal law, holidays and holidays paid annual leave...

It should be remembered that the basis of criminal liability is the commission of an act containing all the elements of a crime under the Criminal Code:

• object is public attitude which is protected by the Criminal Code;
• the objective side is a set of features that characterize outward manifestation crimes (in particular, action / inaction, causal relationship; time, place, situation and other detailed data);
• subject - individual who commits a crime (medical worker);
• the subjective side is the mental attitude of a person to the socially dangerous act committed by him (guilt, motive and purpose). The guilt of a person can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).

Unlike administrative offenses, the types of violations in criminal liability are more socially dangerous, therefore, in criminal liability, the sanctions against the employer are more stringent.

You can find a visual table showing the offenses of the employer and the articles of the Criminal Code of the Russian Federation, according to which criminal liability is provided for such violations, in the article "".

In order to understand in more detail the issue of the responsibility of the employer to the employee, we recommend that you familiarize yourself with other articles of this section.

17.04.2016

The right of ownership in the Russian Federation is recognized and protected by the state. Accordingly, private, state, municipal and other forms of ownership are recognized and protected in the same way. Liability of employees for damage caused to the employer in the performance of labor duties is one of the means of protecting the employer's property rights.

Liability of employees according to labor law

Careful attitude to the property of the employer is one of the main duties of the employee under an employment contract (Article 21 of the Labor Code of the Russian Federation). In cases where he violated the requirement of the law to take care of the property of the employer, as a result of which the employer suffered property damage, the employee is obliged to compensate for this damage. In other words, employees are subject to material liability according to the norms of labor law, which is defined as a measure of state coercion, which consists in imposing on the employee the obligation to compensate, in the manner and amount established by law, the damage caused through his fault to the organization with which he is in labor relations.

The legal basis for the institution of material liability of workers is formed mainly by constitutional norms, for example, Art. 8 of the Constitution of the Russian Federation, which establishes the forms of ownership and their inviolability, as well as the Labor Code of the Russian Federation (Ch. 37, 39).

The material liability of employees according to the norms of labor law must be distinguished from other measures of material influence, namely:

• Deprivation or reduction of the amount of the bonus provided for by the system of remuneration and remuneration based on the results of the annual work of the organization (where such remuneration is provided for by local regulations containing labor law).
• Reducing the coefficient of labor participation in the collective form of organization and stimulation of labor.
• Deductions from wages made on the basis of the law (Article 137 of the Labor Code of the Russian Federation).

Regulatory legal acts, regulating compensation for material damage caused to the employer, are designed to:

• First, to ensure the safety of the property of the employer and employee, to prevent the facts of waste and mismanagement.
• Secondly, to promote the strengthening of labor discipline.
• Third, to ensure the protection of workers' wages from excessive and illegal deductions.

Liability according to the norms of labor law encourages employees to work in such a way that there is no damage, loss, destruction, theft of material assets. It is called upon to play a serious role in the fight against violations of state discipline, which may be distortions of operational and accounting reports and postscripts. Such phenomena not only bring significant harm to the normal activities of the organization, but also cause material damage, which, as practice shows, is expressed to a greater extent in the theft of unaccounted for or unused material values.

The subjects of material liability in labor law, as it was said, can be both an employee and an employer (organization), regardless of the form of ownership on the basis of which the this organization. As economic and judicial practice shows, nevertheless, the subject of legal relations for material liability in the sphere of labor is primarily an employee who caused material (property) damage to the employer by his unlawful guilty actions (inaction).

Conditions for holding an employee liable

An analysis of the norms of the Labor Code of the Russian Federation, in particular Articles 233, 238 of the Labor Code of the Russian Federation, leads to the conclusion that the employee’s liability arises for damage caused to the employer only if a combination of the following conditions is established:

1. Existence of direct actual damage.
2. Wrongful behavior of an employee.
3. Causal relationship between the employee's unlawful behavior and the existence of damage.
4. The fault of the employee in causing damage.

These conditions are mandatory and in the absence of at least one of them, it is impossible to hold the employee liable under labor law.

1. Existence of direct actual damage must be proven. Evidence of the occurrence of damage is the statement of the party to the employment contract, confirmed by documents and other evidence, including testimonies.

In paragraph 2 of Art. 55 of the Civil Procedure Code of the Russian Federation, it is established that evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision. Evidence is characterized by the fact that it represents factual data, i.e. information that correctly and sufficiently reflects the circumstances that are important for determining the existence of material damage caused to one or another party to the employment contract.

Unlike civil law, only real damage (also called direct or actual damage) that the employer or employee actually caused is subject to proof. In civil law, in addition to real damage, unearned income is also recovered, which a person (natural or legal) would have received if normal conditions civil turnover, if his right had not been violated (lost profit or lost income). The norms of labor legislation do not provide for the recovery of lost income (profit that the employer could have received, but did not receive as a result of illegal actions (inaction) of his employees) is not provided.

2. Wrongful behavior of an employee is a legally significant circumstance when bringing him to liability. Behavior (action or inaction) is recognized as illegal if it violates certain obligations assigned to the party to the employment contract by the relevant labor standards. The main duties of the employee are provided for in Art. 21 of the Labor Code of the Russian Federation. In addition, the obligations of the employee arise from the content of the employment contract, as well as the rules of the internal work schedule.

Illegal is the behavior of an employee in which he does not perform his job duties or performs them improperly, but only those duties that are directly or indirectly related to careful attitude to material values ​​(property of the employer and other employees) in accordance with Art. 21 of the Labor Code of the Russian Federation. These obligations are usually specified in special acts that determine the procedure for saving, storing and using property and other material values. These acts, in addition to laws, decrees of the President of the Russian Federation, resolutions, orders of the Government of the Russian Federation, include internal labor regulations, job descriptions, various rules, instructions and orders of the employer.

Inaction is recognized as unlawful if the above acts impose on the parties to the employment contract (or on one of them) the obligation to perform certain actions that one or another party has not fulfilled. If this applies, in particular, to an employee, he must be familiarized with such an act.

3. causationbetween the unlawful behavior of the employee and the existence of damage is one of the mandatory conditions for bringing him to liability. Proving this circumstance involves the presentation of evidence confirming the connection between non-fulfillment or improper fulfillment of the duties assigned to the employee in compliance with the law with the occurrence of damage. Of course, there is no liability for accidental consequences.

4. The fault of the employee in causing damage should be taken into account when deciding whether to bring him to liability. In labor law, guilt is understood as the mental (internal) attitude of a person to his unlawful behavior and its consequences (results).

Distinguish guilt in the form of intent (direct or indirect) and in the form of negligence (arrogance, negligence, imprudence). Direct intent takes place when the employee is aware of the illegal nature of his action (behavior), foresees the possibility of harmful consequences (damage) and wishes them to occur. With indirect intent, the employee, aware of the unlawfulness of his behavior and understanding the possibility of material damage, does not want this, but allows the onset of harmful consequences or is indifferent to their occurrence.

Negligence in the form of arrogance consists in the fact that the employee, realizing the illegal nature of his action (inaction) and the possibility of material damage as a result of this, frivolously hopes to prevent the latter.

Negligence, imprudence is evident where the employee was not aware of the unlawful nature of his behavior and did not foresee the possibility of causing damage, however, due to the circumstances of the case, he should have and could foresee.

Any form of guilt can serve as a basis for bringing an employee to liability under labor law (of course, if there are other conditions of liability provided for by law).

When deciding whether to bring an employee to liability, the division of intent into direct or indirect intent has no practical significance. At the same time, the difference between intent and negligence plays a certain role, since in some cases the limits of liability (limited or full) depend on the form of guilt. If the damage is caused by the intentional actions of the employee, including when the employee did not want, but deliberately allowed the possibility of damage, then liability arises in the full amount of the damage caused (clause 3, part 1, article 243 of the Labor Code of the Russian Federation).

Circumstances excluding material liability of the employee

In some cases, the law provides for a rule according to which the material liability of the employee to the employer is excluded. In particular, in accordance with Art. 239 of the Labor Code of the Russian Federation, such cases include: the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill obligations to ensure proper conditions for storing property entrusted to the employee.

Force majeure (force majeure) is an extraordinary and unavoidable event or circumstance under the given conditions ( disaster, for example, flood, earthquake, some social phenomena, for example, military operations, man-made accidents).

It is not allowed to impose material liability on employees for such damage that arose as a result of normal economic risk.

The resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 (clause 5) states that the actions of an employee that correspond to modern knowledge and experience can be attributed to normal economic risk, when the goal set could not be achieved otherwise, the employee properly fulfilled the tasks assigned to him official duties, showed a certain degree of care and discretion, took measures to prevent damage, and the object of risk was material values, and not the life and health of people.

As a circumstance relieving the employee from liability due to the absence of unlawful behavior, the fulfillment of the requirement (order, order) of the employer (his representative) to commit actions that led to material damage may act.

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to recover damages caused by the employee, in whole or in part. The employer can use this right taking into account the circumstances in which the damage was caused, the financial situation of the employee and other circumstances. Such a refusal is permissible regardless of whether the employee bears limited liability or liability in full, and also regardless of the form of ownership of the organization.

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