Pursuant to Article L. 121-9 of the Labour Code, the employer bears the risks deriving from the activity of the company and the employee takes responsibility for damage caused by his wilful acts or his serious negligence. The company’s risks therefore weigh upon the employer, who is in charge of his company.
This provision, protecting the rights of employees, is a matter of public policy in so far as the employee cannot waive the benefit thereof by agreeing to accept responsibility for the remedying of matters attributable to him which cannot be classified either as wilful acts or acts constituting serious negligence.
It follows from this principle that any clause of an employment contract according to which an employee consents in advance to take responsibility for any damage, regardless of the causes thereof and whether or not there is any wrongdoing, will be void, in so far as any such clause would cause the employee to incur liability beyond the legal limits.
The case law has interpreted this legal provision to the effect that there is no responsibility on the part of the employee for losses and damage suffered by the company except in cases where the employee has committed wilful misconduct, equivalent to fraud, gross negligence being assimilated to wrongdoing of that kind.
It has also been held that serious negligence does not require a deliberate act, but covers a significant lack of care, caution or vigilance which resulted in damage being caused.
It is incumbent upon the employer to produce evidence of any wilful act or serious negligence which has caused him harm.
The limitation of an employee’s liability relates not only to material damage committed by the employee, affecting tools, equipment and installations of the company, but also damage caused by the employee in breach of any obligation.