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Notable Labour Court of Appeal decisions in 2018
Employment & Benefits Luxembourg
Paid leave under notice period
Economic dismissal
This article examines a number of notable decisions taken by the Labour Court of Appeal in 2018.
On 7 June 2018 the Labour Court of Appeal held that the high level of freedom enjoyed by senior managers with regard to the organisation of their work must be exercised within the limits of their relationship of subordination with their employer (Case 45229).
In the case at hand, the court held that the senior manager's dismissal had been valid, as the fact that he had enjoyed a broad level of independence with regard to the organisation of his work did not permit him to refuse to travel abroad for an assignment that he had already accepted. In addition, even if the employee had not been subject to a strict work schedule, he had been required to inform his employer when he left his workplace.
On 5 July 2018 the Labour Court of Appeal held that the burden of proof of overtime falls on the employee who requests payment (Case 44992).
The court held that Skype calls during which an employee was named, as well as several emails (including one from his employer) and testimonies from former colleagues, demonstrated that the employee had regularly been at work outside his normal working hours. As such, the court ruled that the employee had performed overtime to the knowledge and at the request of the employer. The court therefore ordered the employer to pay overtime as requested by the employee.
On 12 July 2018 the Labour Court of Appeal issued a decision which serves as a reminder that the release of an employee from their duties during their notice period cannot lead to a reduction in their remuneration (Case 40702). The court held that this rule is a public order provision and that any contrary provision provided for in an employment contract must be considered void.
In the case at hand, the employee had been exempted from work during his notice period and had gone on holiday. The court ruled that the employer had not been entitled to deduct the remaining paid leave which was due to the employee over the notice period and ordered it to pay the employee an indemnity for untaken leave at the end of the notice period.
On 17 May 2018 the Labour Court of Appeal issued a decision which serves as a reminder that employers do not have to demonstrate economic difficulties to justify a dismissal for non-personal reasons (Case 43317). The court held that employers may legitimately take restructuring measures, even where there is no threat of possible economic losses.
In the case at hand, the employer had eliminated the position of an employee hired as an accountant, who had 16 years of seniority, in order to reduce operating costs and save money. According to the court, the elimination of a position is a free choice of an employer. In this context, it is sufficient that such an elimination has really occurred to justify the affected employee's dismissal, even in the absence of economic losses.
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be accessed at www.castegnaro.lu.
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Guy Castegnaro
Ariane Claverie
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