Can you be fired in Luxembourg while sick? Rules and regulations on sick leave and employee rights

Luxembourg law: protection of the employee on sick leave

Luxembourg law establishes strict protection for an employee on sick leave (incapacity for work due to illness or accident). According to the Luxembourg Labour Code (article L.121-6), if an employee has duly notified the employer of his/her illness (by giving notice on the first day of absence and submitting a medical certificate of incapacity for work no later than the third day), the employer is prohibited from dismissing such employee during the period of illness. In other words, dismissal (both with notice and with immediate effect) is not allowed while the employee is officially on sick leave. Even if there is a serious reason (disciplinary or gross misconduct), the employer may not notify the employee of the termination of the contract during the period of incapacity for work, provided that the rules on informing are complied with. The prohibition covers every day of the sickness period and the right to dismiss is only restored from the first working day after the end of the sick leave.

In order to obtain this protection, the employee must fulfil mandatory formalities: inform the employer of the illness on the day the incapacity for work begins (personally or through another person, orally or in writing) and provide the employer with a medical certificate (sick leave) by the third day of absence at the latest. If these requirements are breached, the defence may not apply. For example, if an employee fails to give timely notice or send sick leave within the prescribed time limits, the employer is entitled to treat the absence as unauthorised. Luxembourg case law shows that a single small delay in providing a certificate (a few hours or days) is not always considered sufficient grounds for instant dismissal - the courts take into account the circumstances, the length of the absence and the employee's good faith. However, systematic failure to comply with the notification obligations (despite reminders from the employer) may be considered a disciplinary offence. For example, the Luxembourg Court of Appeal, in a decision of 5 June 2008, upheld the legality of dismissal with notice of an employee who repeatedly ignored the requirements of Article L.121-6 by failing to provide sick leave on time - the court stated that the employer was not obliged to tolerate such behaviour indefinitely and could terminate the contract even if it was not proven that the employee's absence had directly disrupted the work of the company.

Exceptions to the prohibition on dismissal

The law provides for a limited list of situations where the defence does not apply. Firstly, if the employee's incapacity for work was a consequence of a crime or offence in which he or she voluntarily participated - in such a case the rule of protection does not apply. Secondly, if the employee only reports the illness after receiving a notice of impending dismissal or a letter of dismissal, the employer is not obliged to rescind the decision (a classic example is when an employee receives an invitation to a pre-dismissal interview or a letter of dismissal and only then sends a sickness certificate). However, even here there is a caveat: in the case of an employee's emergency hospitalisation, this logic changes. If an employee is hospitalised urgently and physically could not notify the employer immediately, he has 8 days from the date of hospitalisation to provide a medical certificate, and if he meets this deadline, the previously sent notice of dismissal or invitation to a discussion is considered invalid. In other words, emergency hospitalisation cancels the dismissal procedure already initiated, provided that the illness is timely confirmed by a medical certificate.

Duration of protection and limits

Protection against dismissal is time-limited. The law explicitly states that it is valid for a maximum of 26 weeks (about 6 months) from the beginning of the period of incapacity for work. After 26 weeks of uninterrupted sick leave, the employer is entitled to dismiss the employee - subject, of course, to the usual procedure and the issuance of notice. The six-month sick leave period thus exhausts the period of absolute protection against dismissal. If the employee has still not returned to work by that time, the company has the right to initiate termination proceedings on the grounds of prolonged inability to perform duties. In practice, it is usually after the 26th week of absence that dismissal on the grounds of long-term sickness is made.

It is important to note that even after 26 weeks, the employer must have a genuine and justifiable reason for the dismissal, related to industrial necessity or the employee's condition. Prolonged absence in itself is usually recognised as sufficient reason, as it is assumed that such a long period of sick leave creates serious difficulties for the operation of the company. The courts assess whether the absence disrupts the functioning of the company and whether it has become necessary to permanently replace the employee. If so, the dismissal (with due warning) is considered justified. A special case is work-related injuries and occupational diseases. If long-term incapacity for work is caused by a work accident or occupational disease, the employer must be particularly careful. Luxembourg law and jurisprudence states that absence of more than 26 weeks due to an occupational injury alone does not automatically give rise to dismissal. In such a situation, the employer must first consider the possibilities of rehabilitation or transfer of the employee, liaise with the social insurance and reclassification authorities, and only if it is clear that the employee will not be able to return to work may the question of termination be raised in a special way (e.g. through an external vocational reclassification procedure - see below).

Automatic termination of employment contract in case of long-term illness

The Luxembourg social security system sets limits for sick leave, after which the employment contract is terminated automatically, by law, without formal dismissal by the employer. The current limit is 78 weeks of sickness for 104 consecutive weeks (i.e. a total of one and a half years of incapacity for work in a two-year period). If an employee has exhausted their entitlement to paid sick leave (usually at week 78), their contract is de jure terminated. This is not regarded as a disciplinary dismissal: in fact, the law recognises that the employee has suffered a long-term disability. This is followed by a reclassement externe through the ADEM labour exchange or a disability pension, as the case may be. This means that the maximum period of job protection in case of illness is about 18 months, after which either the employee returns to work or the employment relationship is terminated for objective health reasons.

Note that the termination of the contract after 78 weeks is the end of the contract by law and not the employer's initiative. An employer cannot dismiss an employee before this deadline if the employee remains on sick leave and has not exceeded the 26-week protection threshold (excluding the special cases mentioned above). If the employer violates the prohibition and tries to dismiss the sick employee before the end of the protection period, such dismissal will be considered wrongful (abusive). In such cases, the courts will award the employee damages for unlawful dismissal. It is important to understand: the Luxembourg Labour Code does not provide for automatic reinstatement - even an unlawful dismissal is not annulled, but only results in the payment of monetary compensation to the employee. Therefore, employers usually follow the rule and do not risk dismissal during sickness, knowing the potential sanctions.

Differences in the public sector (civil servants, etc.)

The Labour Code rules described above apply to the private sector - i.e. to the employment contracts of employees of private companies. However, separate rules apply to civil servants and public sector employees (civil servants, employees of ministries and public institutions). Luxembourg civil servants are not covered by the general Labour Code; their status is regulated by specific legislation - for example, the Law of 16 April 1979 on the general status of civil servants. These acts also provide protection during sickness, but the mechanisms are somewhat different.

The fundamental similarity is that a civil servant cannot be dismissed for being on sick leave. For the duration of the illness, he or she retains his or her place of work and is paid his or her full salary. Unlike in the private sector, where the social insurance fund (CNS) is activated after 77 days of sick leave, in the public sector the full salary continues to be paid for the entire period of sickness. In fact, the state, as employer, ensures that 100% of the salary is retained for the entire sick leave. In addition, the civil servant is not obliged to send sick leaves to the CNS - a separate system (Caisse de maladie des fonctionnaires et employés publics, CMFEP) deals with incapacity for work. Nevertheless, the employee must notify his/her management of the illness and provide medical certificates, similar to the private sector.

The main difference is the procedure for prolonged illness. There is a special mechanism for civil servants to control long periods of incapacity for work. If an official has been on sick leave for a cumulative period of 6 months within a 12-month period (whether consecutive or intermittent), a medical examination procedure is initiated. The relevant minister (head of department) refers the employee to a medical doctor (médecin de contrôle). This doctor assesses the employee's condition and decides whether he or she is able to fulfil his or her duties for the foreseeable future. There are two main outcomes:

• Reliable Disability. If the medical supervisor concludes that the official's medical condition probably fulfils the criteria for a disability pension, the materials are forwarded to the Pension Commission. The Commission may recognise the official as disabled and award the appropriate pension. In such a case, there is effectively a termination of service for health reasons - the official does not return to duty, but this is formalised as a retirement rather than a dismissal for misconduct.
• Continuation of treatment. If, however, the supervising physician believes that prolonged sick leave is justified and recovery is still possible, the employee is allowed extended sick leave under the supervision of the supervising physician. The official is required to undergo periodic follow-up medical examinations and follow instructions. However, the total duration of such extended sick leave is limited: the additional sick leave cannot exceed 6 months from the date of the first intervention of the supervising doctor. In other words, from the moment when the official's case was taken under control by the departmental doctor, a maximum of six months should be the outcome - either recovery and return to work, or recognition of incapacity for work. If by the end of this period (or earlier, if it becomes clear sooner) the controlling doctor considers that the official still has not regained the ability to work, the case is referred back to the Pension Commission to decide on the issue of disability pension.

Thus, in the public sector, there is no formal concept of "sick leave". If an employee's health is so impaired that he or she cannot perform service for a long period of time, he or she is not dismissed, but is either given a long sick leave with pay or, as a last resort, a disability pension. All these measures are taken in accordance with the procedure stipulated by the legislation on civil service and are aimed at social protection of the employee. Of course, if an employee violates discipline or commits misdemeanours (unrelated to illness), he or she may be subject to disciplinary sanctions up to and including dismissal - but the mere fact of being on sick leave is not grounds for dismissal of a civil servant. As a result, the difference between the private and public sectors lies mainly in the procedure: in a private company, after 26 weeks of absence, the employment contract can be terminated by the employer (with compensation), while for a civil servant, after about 6-12 months of illness, a medical-administrative procedure is initiated, leading either to a return to service or to retirement, but not to a classic dismissal.

What about the neighbours?

The rules in Luxembourg are unique in many respects in that they establish a clear period of absolute protection (6 months). For the sake of comparison, let us briefly consider France and Germany.

France

In France, there is no direct similar prohibition on dismissal during a fixed period of illness (except in certain cases, e.g. industrial accidents or occupational diseases, where special protection exists). However, it is not possible to dismiss an employee just because he or she is ill - this is regarded as discrimination on grounds of health. Therefore, an employer in France cannot cite illness as a reason for dismissal. However, dismissal during sick leave is possible for other reasons. The main permissible reason is a serious disruption of the company's operations due to the employee's prolonged or frequent absence. French law has developed criteria: dismissal is permissible if the employee's absence causes disruption to the company's operations and requires him or her to be permanently replaced by another employee. For example, if an employee is ill for a very long time and the firm has to hire someone to replace him on a permanent basis, this may be grounds for dismissal for a real and serious reason;

In addition, during sick leave in France, it is possible to be dismissed for reasons unrelated to the employee's identity: on economic grounds (redundancy, abolition of a post) or for a disciplinary offence committed before the illness. But all these dismissals must follow the normal procedure (warning meeting, notice, etc.) and the employee on sick leave is entitled to the same compensation as any dismissed employee. Interestingly, in France, some sectoral agreements (collective agreements) expressly prohibit dismissal during sickness for a certain period (e.g. 3 or 6 months). That is, there are additional guarantees arising from contracts: as long as the job security is in force, the employer is not entitled to terminate the contract, even if the absence is prolonged. However, there is no fixed general rule of 6 months, as in Luxembourg, in France - the issue is decided on the basis of circumstances and court practice.

Germany

German labour law in general does not specifically prohibit the dismissal of an employee who is on sick leave. Moreover, a notice of dismissal may be served on an employee while he or she is on sick leave and this will not automatically result in the cancellation of the dismissal. Unlike in Luxembourg, where sick leave suspends any dismissal proceedings, in Germany sick leave itself does not extend the notice period or prevent the employee from giving notice of termination. However, this does not mean that a German employer is free to dismiss without cause. Germany has a general principle of protection against unjustified dismissals (Kündigungsschutzgesetz): any dismissal must be socially justified. If an employer dismisses a person only because of an illness that does not result in long-term disability, the court may consider this to be wrongful and "unfair" dismissal. The German courts check whether the dismissal has the character of an abuse of rights. For example, if an employee falls ill for a short period of time and is dismissed, this is likely to be recognised as unlawful. On the other hand, a long-term or chronic illness in itself can be considered a personal reason for dismissal if certain conditions are fulfilled;

Germany has developed criteria for dismissal for health reasons: 1) the employee's absence is really long or regular and the prognosis for recovery is unfavourable; 2) the illness seriously impairs the employer's production or economic interests; 3) the dismissal is considered reasonable and proportionate after weighing the interests of the parties. Simply put, dismissal for health reasons is possible if an employee has been ill for too long and there is no chance of getting out (in this case, the employer must first consider options for part-time employment, rehabilitation - the so-called integration management procedure). Dismissal on sick leave on any other legal grounds (e.g. staff reduction) is also allowed - the fact of temporary incapacity for work does not "freeze" the company's organisational decisions. In general, the difference with Luxembourg is that in Germany there are no periods of absolute protection, but there is a more flexible system of control: dismissal during sickness is possible, but subject to a strict abuse test. For example, a German court will invalidate a dismissal if it considers that the employer has parted with the employee out of revenge or discrimination due to illness - such a dismissal qualifies as unfair and unlawful.

Most countries in the European Union have rules restricting the dismissal of sick employees in one way or another, but the specific mechanisms vary. For example, in Belgium, an employer cannot dismiss an employee during an industrial accident or occupational disease, while the principle of good cause, similar to the French one, applies to ordinary illness. In Spain, recent reforms have tightened the protection: it is now illegal to dismiss only for reasons of temporary incapacity for work. Many countries (Italy, Portugal, Poland, etc.) set a minimum period of protection - from a few months to a year, depending on the length of service - during which dismissal on grounds of sickness is not allowed. At the same time, almost everywhere the employer retains the right to dismiss an employee if the illness turns into a permanent or long-term inability to work, or if there are other legitimate grounds (disciplinary, economic). Against the background of these approaches, Luxembourg looks quite socially oriented: 6 months of full protection is quite a long period (in many countries the guarantee is shorter). On the other hand, the existence of a time limit (26 weeks) and a procedure for automatic termination of the contract after 78 weeks makes Luxembourg similar to neighbouring jurisdictions, which also set maximums for paid sick leave.