This question is related to whether or not a claim can be filed for damages against a worker.

If we analyse the rulings of the Spanish courts, we can traditionally find two opposing theses:

  • One that considers it would be impossible to file a claim against workers for compensation of the damages caused due to performing their work, when the worker’s breaches of contract do not imply liability for compensation but rather disciplinary liability, due to the employment relationship not being involved.
  • The other that a worker’s disciplinary liability is different and separate from civil liability, (labour, to be more precise), which could also be committed while performing his/her work, because to understand that the employment relationship is not involved prevents any claim for damages being filed against the worker is so drastic that it would make one consider that the worker has absolute immunity regarding the results that could be caused by his/her conduct when performing his/her work duties.

However, although these two positions exist, the Supreme Court ruled on this matter in its judgement of 14 November 2007, confirming there was liability for compensation by the worker even when the employment relationship between the employee and the employer was not involved.

This theory, also based on no employment relationship being involved, sustains that a mere breach of contract compatible with applying Article 1.101 of the Spanish Civil Code is not sufficient, since the lack of relationship includes in its scope the mistakes or negligence that the worker could commit and this does not imply that no liability whatsoever can be claimed against the worker, albeit limited to the most serious cases.

In this respect, the Supreme Court limited the possibility to claim damages against a worker, specifying that “this means the traditional civil criteria of contractual liability for compensation must be defined and it is required that for this to arise within a labour scope the worker’s misconduct or negligence must be serious, qualified or sufficiently important”.

This criterion has also been accepted by the Spanish courts since then, an example of this being the judgement of the High Court of Justice of Madrid of 11 February 2022 or the judgement of the High Court of Justice of Asturias of 14 December 2022.

However, such judgement did not fully clarify the issue, since the requirements that the Spanish High Court considered necessary, such as “negligence that is serious, qualified or sufficiently important”, does not eliminate the subjective nature from such a controversial issue.

Similarly and along the same lines, the Supreme Court specified that “not all errors, mistakes or negligence committed by a worker results in compensation of the damages that his/her conduct causes, which means we must take into account the circumstances of each case in order to assess the level of lack of attention paid to the measures and care required by everyone” and it provided advance information that, due to the indispensable requirement for an appeal (cassation) for unification of doctrine consisting of a contradiction between judgements to be admitted and because of the difficulty in finding cases that have these same facts, judgements will not be ruled on this matter very often.

It is obvious that the possibility to claim compensation from a worker for the damages caused to the company is not a clear issue, since each case is unique and because the Supreme Court has determined certain subjective limits.


Author: Guillermo Guevara, Labour lawyer at RSM