OD FLASH | The absence of gross negligence attributable to the employee does not prevent the employer’s claim for reimbursement of unduly paid amounts

Supreme Court, January 15, 2025, No. 23-19.595

It follows from Articles 1302 and 1302-1 of the French Civil Code that what has been received without being due is subject to restitution, and that anyone who receives by mistake or knowingly what is not owed to them is obliged to return it to the person from whom they have unduly received it.

In this case, an employee working as a field technician is dismissed for serious misconduct for falsely declaring hotel nights and meal expenses during his business trips. He brings claims before the labor court regarding the termination and execution of the employment contract. In a counterclaim, the employer requests the reimbursement of the professional expenses wrongly paid.

The Court of Appeal of Aix-en-Provence, in a ruling dated January 20, 2023, acknowledges the employee’s misconduct and thus the undue nature of the expense reimbursements made by the company. However, the Court of Appeal rejects the employer’s claim on the grounds that the employee was dismissed for serious misconduct and not gross negligence.

To justify their decision, the judges rely on the case law of the Supreme Court, according to which an employee can only be held financially liable towards the employer for errors made during the execution of the employment contract in cases of gross negligence (Cass. soc., April 11, 1996, No. 92-42.847; Cass. soc., November 24, 1999, No. 97-41.911), characterized by an intention to harm (Cass. soc., December 5, 1996, No. 93-44.073).

Both the employee and the employer file an appeal to the Supreme Court against the decision made by the Court of Appeal of Aix-en-Provence.

The Supreme Court overturns the decision of the Court of Appeal of Aix-en-Provence. It recalls that the absence of gross negligence attributable to the employee does not prevent the employer’s claim for reimbursement of unduly paid amounts (Cass. soc., November 19, 2002, No. 00-46.108).

Consequently, even in the absence of gross negligence characterized by an intention to harm, the employee is obliged to reimburse the employer for the professional expenses paid unjustifiably. The social chamber of the Supreme Court thus reiterates that the employer’s action for liability against the employee due to misconduct committed in the execution of the employment contract is independent of the action for the recovery of unduly paid sums.