Under certain conditions, frequent absenteeism due to health reasons may constitute a valid reason for dismissal. However, what happens when an employee's absenteeism is linked to depression caused by work stress? A recent Court of Appeal decision considered this issue and shows that dismissal based on frequent absenteeism could, in principle, be considered abusive.
Employees may drink a small glass of alcohol in the workplace, whether at after-work events or professional lunches or during festivities organised by the company. However, what happens if an employee arrives at work intoxicated? The Court of Appeal was recently confronted with such a situation and had to consider the conditions under which an employee's state of intoxication can justify their dismissal.
The Court of Appeal has ruled that employers' decisions regarding their economic policy, internal organisation and operating procedures cannot justify an employee's resignation due to serious misconduct. The court ruled that the claimant's resignation with immediate effect was abusive and thus denied his claim for damages.
The International Labour Conference recently adopted Convention 190 on Violence and Harassment at Work, which reminds member states of their responsibility to promote a general environment of zero tolerance. In its preamble, the convention states that violence and harassment in the world of work can be a violation of human rights and threaten equal opportunities and are incompatible with decent work. But what is the legal framework in Luxembourg?
Following the introduction of the EU General Data Protection Regulation, employers are no longer obliged to notify and receive prior authorisation from the National Commission for Data Protection to undertake surveillance in the context of an employment relationship. However, this has not reduced the burden on employers – rather, their obligations in this regard have increased.
A bill amending articles of the Labour Code relating to family leave and professional reclassification was recently tabled in the Chamber of Deputies. The bill intends to provide an exception to the rule that employees with a dependant child of a certain age are entitled to family leave in case of the child's illness only if the child is hospitalised. It also provides details on occupational reclassification.
As new information and communication technologies continue to be developed, employees are increasingly connected to their business phones or computers outside their working hours. As such, the line between employees' private and professional lives has become blurred. Within this context, the Luxembourg courts recently recognised, for the first time, the existence of employees' right to disconnect.
A new law has incorporated the Modified Law of 19 December 2008's provisions on apprenticeship and internship contracts into the Labour Code and introduced certain clarifications and modifications. Among other things, the new law provides that apprenticeship contracts must provide for a non-renewable three-month trial period. In addition, apprentices can now benefit from settling-in and training leave in certain circumstances.
Following recent amendments to Article L 222-9 of the Labour Code, the monthly minimum social wage for a non-qualified employee paid per month has been fixed – as of 1 January 2019 – at €256.60 (with the index value of 100 weighted for the cost of living as of 1 January 1948). Thus, as of 1 January 2019 the new gross amounts of the monthly minimum social wage and the applicable legal thresholds and ceilings have been amended.
Luxembourg implemented the EU General Data Protection Regulation through the Law on the Organisation of Luxembourg's National Commission for Data Protection and the General System for Protecting Data. The law made a number of changes to the Labour Code, including extending the circumstances in which employers can process personal data to monitor their employees. Further, employers no longer have to obtain prior authorisation to monitor employees.
In addition to an employee's basic monthly remuneration, employment contracts often provide for the payment of various bonuses or gratuities, the specifics of which can be freely agreed by the parties to the employment relationship. In a recent dispute between a chief operating officer and her former employer, the Court of Appeal considered whether the annual bonus provided for in the employee's contract was owed to her since she had failed to complete her trial period.
The Law of 29 August 2017 reformed the system under which the government co-finances employee vocational training in order to encourage employers to invest in developing their employees' skills while reducing the inequalities in the amount of aid provided to large and small companies. However, a number of matters remained unclear. As such, a recent Grand Ducal regulation has provided useful clarification, particularly with regard to the content and practical details of co-financing requests.
A new law modifying the Labour Code and the Modified Law establishing the General Status of Civil Servants recently came into effect. The law has increased the minimum statutory paid leave entitlement from 25 to 26 days a year. It has also declared Europe Day, celebrated annually on 9 May, a statutory public holiday.
Employees who cannot work due to illness are, in principle, protected against dismissal. The Court of Appeal recently reiterated the conditions which must be met for this protection to apply and, failing this, the circumstances in which an employee's absence may justify dismissal for serious misconduct. Notably, the unique nature of the case and the fact that the employee had worked for the company for nine years did not affect the court's decision.
The Labour Code establishes a dual responsibility in employment relationships – namely, 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. In principle, for the courts to hold an employee responsible for wilful misconduct or gross negligence, the employer must prove not only the damage incurred, but also that this is attributable to the employee's wilful act or gross negligence, as interpreted by the courts.
The Labour Court of Appeal issued a number of notable decisions in 2018. For example, it held that the high level of freedom enjoyed by a senior manager with regard to the organisation of their work must be exercised within the limits of their relationship of subordination with their employer. Further, it held that the burden of proof of overtime falls on the employee who requests payment, and that the release of an employee from their duties during their notice period cannot lead to a reduction in their remuneration.
Following recent amendments to Article L 222-9 of the Labour Code, the monthly minimum social wage for a non-qualified employee paid per month has been fixed – as of 1 January 2019 – at €254.31 (with the index value of 100 weighted for the cost of living as of 1 January 1948). Thus, as of 1 January 2019 the new gross amounts of the monthly minimum social wage and the applicable legal thresholds and ceilings have been amended.
Bill 7381 modifying Article L 222-9 of the Labour Code was recently submitted to the Chamber of Deputies. The bill aims to amend the minimum social wage rates to reflect the average salaries of 2016 and 2017. If the bill is passed, the minimum social wage would increase by 1.1% as of 1 January 2019. The Governing Council has also decided to increase the social inclusion income and the income for those with severe disabilities by the same amount.
The Court of Appeal recently considered the conditions under which employers can access their employees' workplace correspondence and use such correspondence as evidence in court. This judgment confirms the current jurisprudential trend under which employers may occasionally access their employees' computers, including their work emails. Further, any document which concerns only professional data will, in principle, constitute a lawful means of proof.
The new Law on the Organisation of Luxembourg's National Commission for Data Protection and the General System for Protecting Data has, among other things, modified the Labour Code. The key changes introduced in this regard concern the processing of personal data in order to monitor employees, notifying employees of personal data processing, requesting advance compliance opinions and the co-decision system.