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What is a serious misconduct and how to dismiss an employee for that
In this guide, we explain what constitutes serious misconduct in the Grand Duchy and how to legally dismiss an employee for serious misconduct in the employment relationship.
Either the employer or the employee may terminate the employment contract immediately. In the event of serious misconduct, the party who has been the victim of the misconduct is considered to have suffered damage and has the right to take appropriate measures, and the party who has caused the damage must compensate for the damage.
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Select the number of employees in the company:
less than 150 employees
150 employees and more
Make sure that the violation that has occurred is a serious offense
Send a notice of termination
Make sure that the violation that has occurred is a serious offense
Send a notice of termination
Before terminating an employee, an employer must establish that the offense committed can be considered serious misconduct.
Serious misconduct is defined as any violation that makes it immediately impossible to continue employment.
In assessing the level of misconduct, the employer must take into account the total of the factors that affect the professional behavior of the employee:
Education level (general, higher, etc.)
Professional experience
Social status
Other relevant factors
Key terms and conditions for termination of employment
There are a number of important points to consider when terminating an employee. If the employee is guilty of gross misconduct, the following principles apply:
Allowed period during which an employer may rely on serious misconduct as grounds for dismissal
An employer may dismiss an employee for serious misconduct only within one month from the date on which the gross violation of the employment relationship is established.
The one-month term of dismissal does not apply to everyone
First, this time limit does not apply if the gross misconduct resulted in criminal proceedings within one month. Second, the one-month period does not apply if the employer relies on prior serious misconduct that is added to the employee's new offense. Third, the one-month period is suspended if the employer becomes aware of serious misconduct but the employee has since gone on sick leave or had an accident. In such a situation, the employer cannot temporarily dismiss the employee until the employee returns to work or until the period of protection against dismissal expires.
Staff representatives and their deputies, as well as equal opportunity and health and safety representatives, are covered by special rules
These employees cannot be dismissed, nor can they be called for a pre-dismissal interview during their entire term of office, i.e. for a period of 5 years. Nor can they be dismissed during the first 6 months after the expiry or termination of their term of office. In addition, if such employees are standing for election, they may not be dismissed during the 3 months prior to the election.
Employees dismissed with notice may be terminated for serious misconduct
If an employee has been dismissed with notice, but it is discovered during the notice period that the employee has been guilty of serious misconduct, the employee may be dismissed for serious misconduct.
Notice period depends on the number of employees
If there are less than 150 employees, the employer may give notice of termination with immediate effect. If there are 150 or more employees, the employer must conduct a pre-dismissal interview and then send the notice of dismissal, observing the time requirements: not earlier than the next day, but also not later than eight days after the interview.
Unused vacation days need to be paid
An employee is entitled to payment for unused vacation time at the time of termination. An employee will receive a compensation payment for unused vacation time with the last paycheck.
Possible reasons for dismissal
The first and only reason: any offense that makes it immediately impossible to maintain the employment relationship. Examples of serious misconduct include theft, threats, and physical violence against the employer.
Possible compensation of the parties
An employee is entitled to payment for unused vacation days at the time of termination
With the final paycheck, the employee must be paid in exchange for unused leave.
The employer has the right to claim reimbursement from the dismissed person for the cost of continuing education
Professional development expenses are reimbursable if the following conditions are met:
- Training courses (e.g. master's degree, MBA, etc.) were organized and included in the study plan;
- The employer has applied for co-financing of training courses;
- The expenses relate to the current year and the previous three years.
The refund amount may be:
- Up to 100% of current (conventionally called A1) and prior (A2) year expenditures;
- Up to 60% of costs in the year prior to year A2, conventionally referred to as A3;
- Up to 30% of costs in the year prior to the A3 year.
However, it is important to note that any amounts received by the employer for each fiscal year under the co-financing agreement, as well as the statutory allowance of 1,240 euros per fiscal year, must be deducted from these costs.
In order to avoid disputes and disagreements, the employer may specify the amounts to be reimbursed and the conditions for reimbursement of training expenses in the employment contract or in an attachment to the contract.
When the employer has decided to dismiss an employee, it sends a notice of dismissal. The employer is obliged to notify the employee of the dismissal and must do so in writing in one of two legal ways:
By certified mail, return receipt requested
By personally delivering the letter with the employee's signature
The letter must meet the following requirements:
- Clearly describe any serious misconduct of which the employee is accused;
- Write the text in a language the employee understands.
Sometimes, before dismissing an employee, the employer decides to suspend the employee with pay. In such a case, the employee is informed of the decision orally or in writing, and a notice of dismissal may follow at a later stage.
When deciding whether to suspend an employee with pay, the employer should keep in mind that in this scenario, dismissal is possible no earlier than the day after the suspension and no later than eight days after the suspension.
Frequently Asked Questions (FAQ)
What is serious misconduct in Luxembourg
Serious misconduct is any offense that makes it immediately impossible to maintain the employment relationship. Examples of serious misconduct include theft, threats, and physical violence against an employer.
How to dismiss an employee for serious misconduct in Luxembourg
The procedure depends on the size of the company's workforce. If the number of employees is less than 150, it is sufficient to determine that the breach of the employment relationship constitutes serious misconduct and to issue a notice of immediate dismissal for serious reasons. If the number of employees is more than 150, an interview must be held before the notice is given.
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Source: legilux.public.lu, guichet.public.lu
We took photos from these sources: Vitaly Gariev on Unsplash
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