Dismissal with immediate effect for serious misconduct

This page was last modified on 09-03-2016

An employer may dismiss an employee with immediate effect if the latter has committed an offence which renders the working relationship definitively and immediately impossible.

Dismissal of an employee with immediate effect constitutes a more serious sanction than dismissal with notice and from the employer's point of view, there is generally a more serious reason behind this type of dismissal.

For this type of dismissal, the employer does not provide a severance package.

Furthermore, he may, under certain conditions, request that the employee reimburses the costs for any continuous vocational training received.

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Who is concerned

In the event of dismissal with immediate effect for serious misconduct, the following are concerned:

The staff delegation, both regular and substitute staff representatives, as well as the equal opportunities officer and the safety officer cannot be dismissed:

  • during their legal term of office (5 years);
  • during the first 6 months after the expiration or cessation of their mandate;
  • 3 months before the staff elections as soon as they have submitted their candidacy.
Any redundancy procedure against them is deemed null and void.

An employee dismissed with notice who is guilty of serious misconduct during his notice period may be subject to dismissal for serious misconduct.

Preliminary steps

Before dismissing an employee for serious misconduct, the employer must ensure that the the employee's misconduct is so serious that a dismissal without notice is justified.

To assess the level of seriousness, the employer must take into account the employee's:

  • level of education;
  • professional background;
  • social situation;
  • and all the elements which are likely to influence the employee's responsibility.

Duration and deadlines

The dismissal of an employee without notice for serious misconduct must take place within a month following the day the employer was made aware of the misconduct. However, this deadline does not apply if:

  • the employee's offence has led, within a month, to criminal proceedings;
  • the employer invoques a previous offence which adds to the new offence committed by the employee.

Example for the calculation of the deadline of one month to justify a dismissal with immediate effect for serious misconduct:

  • if the employer became aware of the misconduct on 5 May 2014, he can no longer justify dismissal for serious misconduct after 5 June 2014;
  • if the employer became aware of the misconduct on 31 May 2014, he can no longer justify dismissal for serious misconduct after 30 June 2014.

If, after the employer became aware of the case of serious misconduct, the employee is absent due to illness or an accident, the one month deadline is suspended. The employer temporarily loses the right to dismiss the employee. He regains this right:

The notification deadlines for dismissal for serious misconduct vary according to the number of staff employed by the business:

  • if the business employs less than 150 staff, the employer can notify the termination of the contract with immediate effect;
  • if the business employs 150 staff or more, the employer must summon the employee to a pre-dismissal interview. The notification of dismissal must therefore take place:
    • at the earliest the day after the pre-dismissal interview;
    • at the latest 8 days after the pre-dismissal interview.
Steps concerning the dismissal for serious misconduct with immediate effect

Business with less than 150 employees

Business with more than 150 employees

  • Immediate notification of dismissal

How to proceed

Pre-dismissal interview

Number of staff in the business

If a business has 150 staff or more, the employer is legally required to summon the employee to a pre-dismissal interview before dismissing him.

In order to ascertain whether a pre-dismissal interview is mandatory, the total number of staff must be established, i.e. the total number of staff employed in the different companies of a group which is considered as a sole economic and social entity.

Employers who do not comply with the pre-dismissal interview procedure in a busines with more than 150 employees, become exposed to the risk of having to pay the employee a compensation for irregular dismissal.

The compensation amounts to one month's salary at the most.

Summoning a member of the staff delegation, whether a regular or substitute member, or the equal opportunities officer or the safety officer to a pre-dismissal interview is void and of no effect.

Summons to the pre-dismissal interview

In order to summon an employee to a pre-dismissal interview, the employer must send an invitation letter stating:

  • the reason for the invitation, i.e. the envisaged dismissal of the employee;
  • the date, time and location of the interview;
  • that the employee can request to be assisted by:
    • either another employee in the company;
    • or a delegate of a trade union which is representative on a national level and represented by a member in the company's staff delegation;
  • that the employer can also request to be assisted by:
    • either a member of staff;
    • or a representative of an employers' organisation.

Employers who have decided to be assisted must state this in the summons to the pre-dismissal interview.

It should be noted that the law does not prohibit employers from being represented or assisted by lawyers during the pre-dismissal interview. In this case, the same rights are granted to the employee concerned

The offences of which the employee is accused must exist at the time of invitation to the pre-dismissal interview.

However, the employer is not required to indicate the motives of dismissal in the invitation letter. They will be explained during the interview.

The employer must also send a copy of the summons to the staff delegation.

It should be noted that since 1 January 2016, employers do no longer have to send a copy of the summons to the Inspectorate of Labour and Mines (ITM).

Pre-dismissal interview procedure

The pre-dismissal interview must take place at the earliest on the 2nd working day after the summons was sent. The purpose is to:

  • inform the employee that his dismissal is being considered;
  • explain the reasons;
  • give him the opportunity to explain himself.

After the interview, the employer can freely decide whether he/she will proceed with the dismissal.

It should be noted that in businesses with less than 150 staff, the pre-dismissal interview, although it is not mandatory, can be set up if the employer wishes so.

However, employers are not exposed to sanctions in the event of immediate notification of dismissal after the pre-dismissal interview. The dismissal remains valid as the obligatory character of the dismissal procedure only applies to businesses with more than 150 staff.

Absence of the employee at the pre-dismissal interview

There are 2 reasons which can explain the absence of an employee at the pre-dismissal interview to which he has been summoned:

  • he has decided not to act on the summons: this decision does not stop the dismissal procedure from following its normal course;
  • he is on sick leave: in this case, the employer must take into account 2 possible scenarios:
    • if the employee has informed the employer of his inability to work and/or provided him with a medical certificate before the employer sent the summons., the employees cannot be validly summoned to the interview;
    • if the employee is on sick leave and has informed the employer and/or provided a medical certificate after having received the summons, the dismissal procedure is not stopped from following its normal course, except in the case of emergency hospitalisation, in which case the employee has 8 days from the day of his hospitalisation to provide his employer with a medical certificate.

Notification of dismissal

An employer who wishes to dismiss an employee for serious misconduct can:

  • either notify the employee directly (after the preliminary interview, where applicable) of his dismissal in writing:
    • by registered letter;
    • or by giving the letter in person to the employee, who must acknowledge receipt by counter-signing a copy of the letter;
      The notification must indicate in detail the act(s) of alleged serious misconduct and which is(are) the reason(s) for his dismissal;
  • or place the employee on gardening leave (orally or in writing) and notify the dismissal at a later date. Gardening leave (or garden leave) implies that the employee is exempted from work. During the period of gardening leave, the employer must continue to pay the employee's salary as well as all other benefits the employee is entitled to, up to the day of notification of dismissal.

In this case, the employer is required to follow the pre-dismissal interview procedure if the business' headcount exceeds 150 staff, within 1 to 8 days after the day the employee was put on gardening leave. However, the employer is still subject to the one month deadline to notify the dismissal as of the day where he/she became aware of the serious misconduct.

If no pre-dismissal interview is held, the notification of dismissal can take place:

  • at the earliest the day after the beginning of the gardening leave;
  • at the latest 8 days after the beginning of the gardening leave.
    The 8-day deadline is suspended if the employee is on sick leave. The employer then temporarily loses the right to dismiss the employee.
It should be noted that gardening leave is mandatory if a dismissal procedure is to be initiated against the employee.

The dismissal letter must be written in a language which the employee can understand.

Repayment of continuous vocational training costs

The employer may request that the dismissed employee repays the costs for continuous vocational training received, on condition that:

  • the training was organised within the framework of a training plan;
  • the employer made a co-financing application for the training courses in question;
  • the costs apply to:
    • the financial year in progress;
    • the 3 previous years.

This provision mainly covers training such as Master, MBA, etc.

The repayment requested by the employer may amount to:

  • 100% of the training costs for the year (y) in progress and the previous financial year (y-1);
  • 60% of the training costs for the financial year before that (y-2).
  • 30% of the training costs for the financial year before that (y-3).

The following will be deducted from these costs:

  • sums received by the employer for each financial year in the context of a co-financing application;
  • an allowance of EUR 1,240 as stipulated by law, for each financial year.
In order to avoid any dispute, it is recommended that the employer explicitly indicates the amounts to be repaid as well as the method of repayment in the employment contract (where applicable, in an addendum to the employment contract).

Who to contact

3, rue des Primeurs
L-2361 - Strassen
Postal box BP 27, L-2010
Luxembourg
Phone: (+352) 247 76100
Fax: (+352) 247 96100
Email contact@itm.etat.lu

Opening hours
from Monday to Friday from 8.30 to 12.00 and 13.30 to 16.30