Employee crime - who is responsible for it?


Anyone can commit a crime, including employees and employers. Sometimes, prohibited acts are performed by employees in workplaces where they perform their duties. The issue of liability for damage caused by an employee crime is particularly relevant when other employees are affected.

Responsibility of the employer and employee

An employer is responsible for a wide variety of situations that occur within his company. He is obliged, inter alia, to ensure safe and hygienic working conditions for every person employed by him. In turn, employees are required to respect general labor law provisions, as well as internal regulations in force in a given plant.

The Labor Code introduces a number of specific obligations binding both employers and employees. Regardless of this, neither party to the employment relationship may commit a prohibited act, as in such a situation they are fully responsible for their actions. The fact of committing a crime as a result of following the supervisor's orders is of no great importance - although in some cases it may be a mitigating circumstance for the perpetrator.

What is an employment crime?

In fact, neither the Criminal Code nor the Labor Code use the concept of an employee crime. However, we can speak of this nature of the prohibited act when the prohibited act is related to the performance or neglect of employee duties. In other words, if an employee commits a crime that can be related to his job, then we can combine it with the employment relationship. It will be similar in the case of specific employee crimes, which were mainly placed at the very end of the Labor Code.

Example 1.

An employee has stolen property belonging to his workplace. In addition, the offense was committed while performing his duties under the employment contract concluded earlier. In this case, we can talk about committing an employee crime, although it will be punished under the provisions of the Penal Code.

Example 2.

An employee has stolen private property belonging to his supervisor. The offense was committed at the employer's home during the holiday season, while the employer was on vacation with his family. In this situation, we are not dealing with an employee crime, as there is no connection between employee obligations and the prohibited act committed.

Responsibility for the committed crime

In each case, the perpetrator of the act, and sometimes the instigator and the helper are also responsible for the employee crime. This fundamental principle of criminal law is intended to punish the perpetrator and prevent similar behavior in the future. Pursuant to Art. 10 § 1 of the Penal Code, on the terms set out in this code, the person who commits a prohibited act after the age of 17 is responsible. Judgment of the SA in Katowice (file reference number II AKa 313/14)
The Penal Code presumes that only a person who has reached the age of 17 may be criminally responsible for his actions, exceptions to which are introduced by the quoted provision of Art. 10 § 2 of the Criminal Code.It is obvious that this provision, as an exception to the principle of criminal irresponsibility of minors, should not be interpreted extensively, and contained in Art. 11 § 2 of the Penal Code, the principle of the cumulative legal qualification of an act cannot ignore the content of Art. 10 § 1 and § 2 of the Penal Code, which excludes the possibility of convicting a person committing a prohibited act before the age of 17, other than that listed in the catalog of Art. 10 § 2 of the Criminal Code.

It turns out, however, that criminal liability may be extended and, in a way, additionally transferred to the employer. Of course, the circumstances of the case and the participation of the employer are decisive here.

Employee crime and the employer's liability

The employer may be liable equally to an employee who has committed a crime in the following cases:

  • if he ordered his subordinate to commit a prohibited act - e.g. he ordered another co-worker to be robbed or to destroy the property of the workplace in order to obtain compensation from the company's insurer;
  • if he cooperated (assisted) in committing the crime together with the employee - e.g. he jointly stole the property of the workplace together with his subordinate;
  • incited (induced) his employee to commit a crime - in accordance with Art. 18 of the Penal Code is responsible for the perpetration not only by the one who performs the prohibited act alone or jointly and in agreement with another person, but also the one who directs the execution of the prohibited act by another person or by using another person's dependence on himself, orders him to perform such an act. Responsible for inciting someone who, wanting another person to commit a prohibited act, urges him to do so. Responsible for aiding, who, with the intention of another person to commit a prohibited act, facilitates its commission by its behavior, in particular by providing a tool, a means of transport, giving advice or information; who, contrary to the specific legal obligation to prevent the commission of a prohibited act, facilitates its commission by its omission, is also responsible for aiding.

In the event of the occurrence of the above circumstances, they may have a mitigating effect on the employee's criminal liability. Of course, they will not completely exclude such liability, but they will alleviate the penalty imposed by the court to some extent. Such a situation may take place, for example, when an employee is forced to commit a crime by his / her superior under the threat of losing employment or harming his family. In exceptional circumstances, the court may then refrain from imposing a punishment on the offender - however, these are quite rare situations. Start a free 30-day trial period with no strings attached!

Employer's civil liability for the employee crime

If the employer did not know about his subordinate's intention to commit a crime, did not encourage him or was a partner, he should not worry about his criminal liability. However, this does not apply to civil liability.

A large proportion of employee crimes are related to damage to property or to another person - mainly theft and battery. In this case, the employer may be liable for the actions of his subordinate pursuant to Art. 120 of the Labor Code Pursuant to this provision, if an employee causes damage to a third party in the performance of his / her duties, only the employer is obliged to compensate for the damage. The employee is liable for recourse (recourse) towards an employer who has remedied the damage caused to a third party.

Considering the above, if an employee has committed a crime that is related to the performance of his / her duties (even if it is a non-intentional crime), the damage resulting from such an event will have to be remedied by the employer, not the employee. The issue of criminal liability is of secondary importance here and becomes the subject of an entirely separate criminal procedure.

The employer's need to compensate for all damage does not mean that he will suffer a loss for the actions or omissions of his subordinate's sole fault. The employer has the so-called recourse against an employee. In practice, the entrepreneur pays the appropriate compensation to the victim of an employee crime (e.g. to another employee who has been beaten or robbed), and then demands reimbursement of this amount against the perpetrator of such an act. If the employee is additionally convicted of a crime, the employer gains an argument to demand reimbursement of the compensation paid. Obviously, if the offense was the result of negligence on the part of the employer (e.g. insufficient securing of workplaces leading to an accident), the employee will not be fully liable and will not have to reimburse the entire amount of compensation. The judgment of the Supreme Court (file ref.no. I CSK 87/13)
Article 120 of the Labor Code does not justify the employer's liability if the damage resulted only from the performance of employee duties.

Employee crime - summary

Responsibility for an employee crime may be twofold - criminal or civil. In the first case, the employer will be liable together with the subordinate if he induced him to commit the prohibited act or assisted him in committing it. Civil liability will arise when the crime caused damage to property or personal injury - in this case, the employer must repair the damage himself, but he is entitled to a claim against the subordinate for reimbursement of the compensation paid (provided that the crime and the resulting damage remain in direct in connection with the performance of employee duties).