According to Article L 121-9 of the Labour Code:
- employers are liable for risks generated by their company's activity; and
- employees are liable for damage caused by their wilful acts or gross negligence.
The Luxembourg courts have interpreted Article L 121-9 to mean that employees can be held liable for damage only in cases of:
- wilful misconduct;
- gross fault; or
- fault or negligence – in particular, gross fault or negligence equivalent to an act of fraud (ie, deceit), meaning that an employee who did not want to realise damage acted as though they did.
It also follows from case law that 'gross negligence', as referred to in Article L 121- 9, constitutes a lack of care, caution or vigilance.
In principle, for the courts to hold an employee responsible for wilful misconduct or gross negligence, the employer must prove not only the damage which incurred, but also that this is attributable to the employee's wilful act or gross negligence, as interpreted by the courts.
The particular circumstances of each case must be taken into account to assess whether an employer may validly ask for compensation, especially since the courts have considered that an employee's recognition of their liability or debt to their employer has no effect. Similarly, a clause in an employment contract that holds the employee liable for damage in circumstances other than those referred to in Article L 121-9 will be void. Some situations are more specific – for example, where an employee damages a company car to which they were given access for professional and private use during the course of private use. In this situation, the application of Article L 121-9 of the Labour Code should be excluded.
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