1. INTRODUCCIÓN
1.4. La letra capitular fuera de los códices
1. GENERAL PROTECTION 175
2. SPECIAL CONSIDERATIONS 175
2.1 Discrimination 175
2.2 Age 176
2.3 Length of service and fixed-term contracts 176
2.4 Part-time work and career breaks 176
2.5 Pregnancy and child care 177
2.6 Carers 177
2.7 Employee representatives 177
2.8 Redundancy 179
2.9 Other 179
3. RESIGNATION 180
4. AVOIDING UNFAIR DISMISSAL 180
4.1 Grounds for dismissal 180
4.2 Permissions 180
4.3 Procedures 181
4.4 Notification/consultation obligations 182
4.5 Duration of notice period 183
4.6 Treatment during notice period 184
4.7 Payment in lieu of notice 184
4.8 Other 185
5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED 185
6. SANCTIONS AND ENFORCEMENT 186
6.1 Sanctions for unlawful dismissal 186
6.2 Void dismissals 188
6.3 Reinstatement 189
1. GENERAL PROTECTION
In Luxembourg, the provisions regarding the termination of employment contracts and the protection against dismissal are contained in the Luxembourg Labour Code. However, some collective bargaining agreements (e.g. in relation to the banking and insurance sectors) may provide greater protection against dismissal than that provided by law.
All categories of workers are protected against dismissal, in the sense that their employment relationships may only be terminated in accordance with the specific provisions of Luxembourg employment law.
Under Luxembourg employment law, there are four different types of termination of a permanent employment contract: dismissal with notice, dismissal without notice when it is for gross misconduct, resignation and termination by mutual consent.
Certain employees or categories of employees benefit from specific additional legal protection (see section 2 below).
Some collective labour agreements provide additional protection for employees involved in the transfer of an undertaking. The employer cannot dismiss such employees for economic reasons for a certain period of time following the date of the transfer.
2. SPECIAL CONSIDERATIONS 2.1 Discrimination
Pursuant to special provisions, a dismissal caused by the employer’s reaction to a complaint regarding discrimination based on sex is void.
The dismissal of a victim of and/or witness to sexual harassment is also void. If a female employee is dismissed on grounds related to her marriage, she may, by registered mail within two months following her dismissal, ask to have it revoked and to be reinstated.
A dismissal based on the refusal of a part-time employee to accept overtime work under other conditions than those provided for in the employment contract is also unfair.
2.5 Pregnancy and child care
As soon as an employee’s pregnancy has been medically certified and notified to the employer, no dismissal or invitation to a preliminary interview prior to a potential dismissal can be made until the twelfth week following the delivery. In the event of termination before medical confirmation of pregnancy, the employee has eight days after the notice of dismissal to provide the employer with a medical certificate (by registered letter) certifying her pregnancy. Within 15 days of the dismissal the employee may request the President of the Labour Court to declare the dismissal void.
In the case of gross misconduct, the employer is, however, allowed to temporarily lay off the employee with immediate effect while awaiting the Labour Court’s ruling on its request to terminate the employment contract. After maternity leave, either the mother or the father may take parental leave, which is meant for parents who wish to take special leave to educate their child. From the last day of the deadline for notice of the parental leave application and for the duration of the leave, the employer is not permitted to notify the employee of the termination of his/her employment contract, or, if applicable, to invite the employee to a preliminary interview, except in the case of gross misconduct. During the parental leave a dismissal with notice is void.
2.6 Carers
Employees who have taken some days of leave to accompany a relative (mother, father, sister, brother, daughter, son, spouse or legally recognised partner) suffering from a terminal illness, are protected against dismissal during their absence. A dismissal with notice notified during that period will be declared unfair. In the case of gross misconduct, the employer may, however, still terminate the employment contract with immediate effect.
2.7 Employee representatives
Members of the staff delegation
The members of the staff delegation are protected against dismissal during their term of office and for a period of six months after their term of office. The same protection exists for candidates standing for election for a period of three months after the election.
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2.2 Age
The employee’s age determines the amount of compensation in the event of an unfair dismissal. For example, the courts take into consideration the difficulty for an older employee of finding new employment. However, older employees do not benefit from any specific protection against dismissal.
2.3 Length of service and fixed-term contracts
The employee’s length of service is taken into account in determining the duration of the notice period, the departure allowance and, in the case of an unfair dismissal, the amount of compensation.
During a trial period the protection of employees against dismissal is less strong than that of ‘ordinary’ employees. However, the employment relationship cannot be terminated by either of the parties during the first two weeks of the trial period, except for gross misconduct or by mutual consent. Termination during the trial period does not need to be preceded by a preliminary meeting. Additionally, when terminating the employment relationship during the trial period, the employer is not required to give any reasons for doing so.
The special dismissal protection that applies to employees on sick leave also applies during the trial period. Therefore, the employment contract is suspended during the period of illness and the initial trial period is extended proportionally, up to a maximum of one month. While the employment contract is temporarily suspended, notice cannot be served. However, if the sick leave exceeds the duration of the initial trial period, the employer is authorised to serve notice in accordance with the provisions which prevailed during the trial period from the first day of the extended trial period onwards. In this case, the end of the notice period must correspond to the end of the extended trial period. If the notice period exceeds the extended trial period, the trial contract is considered to have become a permanent contract. A fixed-term employment contract will automatically terminate at the end of the agreed period, or it may be terminated by one of the parties without notice in the case of gross misconduct, or with the mutual consent of both parties. A termination by mutual consent must be in writing, comprising two original documents, which must be signed by the employer and the employee. If this procedure is not properly carried out, there can be no mutual consent.
2.4 Part-time work and career breaks
Under Article L.124-11(5) and (6) of the Labour Code, a dismissal based on the refusal of an employee to accept part-time or full-time work is unfair.
Ius Laboris
Nevertheless, because it is required under Article L.426-9 that there should be specific authorisation from the court which is more restrictive than the agreement of the joint works council that is required under Article L.425-4), a judge could declare such a dismissal as unfair. The question remains open.
2.8 Redundancy
Collective dismissal protection applies when an employer contemplates dismissing at least:
• seven employees within a period of 30 days
• 15 employees within a period of 90 days.
To work out whether these thresholds have been met, by Luxembourg employment law other types of termination of employment contracts (e.g. those which have taken place at the employer’s initiative for one or more reasons unrelated to the employees’ attitude to work, such as pre-retirement departure and negotiated departure) must be added to the calculation. In order to reach the thresholds, there must be at least four such ‘ordinary’ dismissals.
If the employer is established abroad and the dismissals take place partly in Luxembourg and partly in other countries, all of the dismissals should be taken into account if, for example, the Luxembourg entity is a branch and not a subsidiary (the latter being considered as a legal entity separate from the group of companies) or if the different companies can be considered as forming one commercial and social unit.
A dismissal will be void if it is made on grounds not related to the employee and notified to the latter prior to the signing of a social plan, if it is made before the production of a failure report from the National Conciliation Office, or if it is made before the establishment of a staff delegation or works council, if this is compulsory.
2.9 Other
An employee is protected against dismissal, even for gross misconduct, for the duration of sick leave, provided he or she informed the employer of the illness on the very first day of absence, and provided the employee presents a medical certificate within three days of his or her absence. Subject to compliance with these two conditions, protection against dismissal will apply during the whole period of incapacity for work, for a maximum of 26 weeks. If the illness is intermittent and work is undertaken periodically, the 26-week protection against dismissal will start to run again for each new period of incapacity.
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Notification of dismissal or an invitation to a preliminary meeting prior to a potential dismissal will be declared void. Nevertheless, in the case of gross misconduct, the employer can announce an immediate temporary layoff of the employee and ask the Labour Court to terminate the employee’s employment contract.
Members of the European Works Council
The same provisions as apply to members of the staff delegation apply to the members of the European Works Council.
Members of the joint works council
Members of the joint works council may only be dismissed with notice with the prior permission of the other members of the joint works council. If the joint works council does not reach an agreement as to whether the member concerned should be dismissed, the dismissal must be authorised by the court. Under Article L.425-4 of the Labour Code, the dismissal of a member of the joint works council must comply with the special procedure provided by Article L.425-4(1), and if not it will constitute a formal irregularity (Court of Appeal, Luxembourg, 11 May 2006). Nevertheless, in the case of gross misconduct, the employer can announce the employee’s immediate layoff and ask the court to terminate the contract.
These provisions apply to members of the joint works council during their term of office and for a period of six months afterwards. The same protection applies to candidates standing for election for a period of three months after the election.
Members of the board of directors of a public company who represent the employees
Under Article L.426-9 of the Labour Code, a dismissal with notice without court authorisation of a member of the board of directors of a public company who represents the employees, is considered as a formal irregularity or as unfair. There is no relevant case law on this point and the Article itself is not clear on whether the court must declare a dismissal which does not respect the legal procedure to be unfair or simply irregular. In principle, bearing in mind the rationale of Article L.426-9 and by analogy with Article L.425-4 of the Labour Code regarding members of the joint works council, the dismissal should be declared irregular.
• By Articles L.415-11 and L.415-12 of the Labour Code, in the case of gross misconduct, the employer can suspend a staff representative from work with immediate effect and ask the court for its authorisation to terminate the contract.
• By Article L.425-4 of the Labour Code, the employer requires the permission of the other members of the joint works council prior to the dismissal with notice of one of its members. If the joint works council does not reach an agreement on the dismissal, the dismissal must be authorised by the court.
• By Article L.426-9 of the Labour Code, the employer requires the permission of the court in order to dismiss with notice a member of the board of directors of a public company who represents the employees. In the case of gross misconduct, the employer can suspend the member of the board of directors with immediate effect and ask the court for its authorisation to terminate the contract.
• By Article L.433-1 of the Labour Code, in the case of gross misconduct the employer can suspend a member of the European Works Council with immediate effect from work and ask the court for its authorisation to terminate the employment contract.
• By Article L.337-1 of the Labour Code, in the case of gross misconduct, the employer can suspend an employee who is on maternity leave with immediate effect and ask the court for its authorisation to terminate the contract.
4.3 Procedures
A dismissal (with or without notice) must be given in writing, by registered mail. Alternatively, a duplicate copy of the letter of dismissal can be countersigned by the employee by way of acknowledgment of receipt of the dismissal. Any verbal dismissal is regarded as unfair. In the case of a dismissal with notice, the employee may request to be sent the reasons for the dismissal by registered letter within one month of the date of receiving notice of dismissal.
The employer must then reply by registered letter within one month of the employee’s request, detailing its reasons for terminating the employment contract. If it does not answer within this time, the dismissal will be regarded as unfair by the court.
It is crucial that the reasons for a dismissal with notice are supported by clear and precise facts. Such facts may include reasons connected with:
• the employee's aptitude
• the employee's conduct
• the operational needs of the business, establishment or particular department.
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By Article L.124-11(4) of the Labour Code, the dismissal of an employee for taking part in a legal strike (which has been duly declared) is considered unfair. By Article L.124-11(7) of the Labour Code a dismissal based on an employee’s decision to waive his or her right to an early retirement indemnity is also deemed unfair.
3. RESIGNATION
A resignation becomes a dismissal when the employee resigns because the employer decided to substantially modify the terms and conditions of his or her employment contract in a less favourable manner, without the employee’s consent.
In this case, a similar procedure to the one applicable in the case of a dismissal must be complied with (see section 4.3), and the employee is entitled to bring a claim for compensation for unfair dismissal if the modification is based on unlawful reasons.
4. AVOIDING UNFAIR DISMISSAL 4.1 Grounds for dismissal
Under Article L.124-11 of the Labour Code, a dismissal is regarded as unfair and contrary to social and economic policy if it takes place for unlawful reasons, if it is not well founded on valid grounds related to the employee's aptitude, conduct, or operational needs of the business, establishment or particular department.
If the employee challenges the reasons given by the employer in support of the dismissal, the burden of proof concerning the facts, their validity and gravity lies with the employer.
The employer is entitled to present new evidence before the court, additional to that set out in the letter of dismissal or in the motivation letter, but may not give new reasons. This new evidence must not compensate for the imprecision of the motivation letter or, in the case of a dismissal with immediate effect, the dismissal letter.
4.2 Permissions
Usually, dismissals do not require special permission. However, in some cases permission is required in order to protect certain categories of employees:
Ius Laboris
A copy of this invitation must be sent to the staff representatives, if any, or otherwise to the Labour and Mines Inspectorate (‘Inspection du travail et des mines’).
The notification of the preliminary meeting must contain the following information:
• the date, time and place of the interview
• an explanation that the employee can be assisted during the interview by a colleague or a trade union representative (if he or she is to be
accompanied by a trade union representative, the trade union concerned must be represented within the staff delegation of the company)
• if the employer wishes to be accompanied by an employee or by a representative of an employers’ association, an indication that this will occur.
During the meeting, the employer must:
• tell the employee the reasons for the proposed dismissal
• take note of the employee’s answers, as well as those of the person accompanying him or her.
4.5 Duration of notice period
Notice by the employer must be given as follows:
Length of service Notice required
Less than 5 years 2 months
5 years or more 4 months
At least 10 years 6 months
Notice takes effect only on the first or the fifteenth day of the month. Notice given before the fifteenth of the month generally takes effect on the fifteenth; notice given after the fourteenth day generally takes effect on the first day of the following month.
In relation to an employee’s trial period, a special period of notice is calculated on the basis of the length of the agreed trial period. One day’s notice of termination must be observed for each week of the agreed period, if the trial period is expressed in weeks. If the trial period is expressed in months, the notice to be given is four days per month of the trial period, with a minimum of 15 days and a maximum of one month. During the trial period the notice period begins to run on the day following the notification of termination.
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Moreover, Luxembourg case law indicates that the motivation letter must inform the employee:
• of exactly what facts, breaches or errors have been taken into consideration and
• that he or she has the right to bring a claim for damages. Furthermore, the letter must:
• not allow the employer subsequently to put forward different reasons for the dismissal than those which motivated it initially
• enable the court to appreciate the gravity of the reasons.
Note that the court has exclusive authority to assess the gravity of the reasons. If the letter is not precise enough, the court will declare the dismissal unfair. The size of the undertaking is taken into account to determine whether a