Extension of trial period due to employee illness

An employee’s incapacity for work will affect the duration of the trial period.(2) In case of suspension of the employment contract – that is, due to illness or accident(3) – the trial period may be extended by a period equivalent to the duration of the suspension, but must not exceed one month.(4) Thus, the expiration date of the initial trial period will be modified in case of the employee’s incapacity for work. For instance, if an employee’s incapacity exceeds one month of an initial six-month trial period from October 1 2014 to March 31 2015, the trial period will be extended by one month and thus will expire on April 30 2015.

The trial period will automatically be extended as soon as the employee becomes unfit for work, for a maximum of one month. This extension requires no specific information on the employer’s part.

Protection period against dismissal for incapacity

In principle, where the employee is unfit for work, he or she enjoys special protection against dismissal, provided that he or she:

• informs the employer of his or her incapacity for work on the first day of incapacity; and

• submits a medical certificate to the employer no later than the third day of absence for incapacity.

If the employee has met these two conditions, he or she will be protected from termination, with either legal notice or immediate effect, throughout the period of incapacity. If the employee’s incapacity lasts until the end of the trial period, this protection will apply throughout the entire trial period and the employee’s contract will therefore become definitive.

In order to avoid this situation – which contradicts the basic principle of the trial period – the relevant authorities admit that the employer exceptionally recovers its right to terminate the employment contract of the employee unfit for work, but only during the extended trial period.(5)

Recovering the right to dismiss employee on trial period during work incapacity

A recent Labour Tribunal decision has confirmed that if an employee on a trial period is still unfit for work when the employer wishes to terminate the contract, the employer recovers the right to dismiss only on the last day on which it must normally give notice to terminate the contract of an employee on an extended trial period.(6) The expiration of the notice period must correspond to the last day of the extended trial period. Thus, the employer must give notice on the day preceding the start date of the applicable notice period.

In this case, the employee’s six-month trial period ended on June 30 2012. The employment contract set a conventional notice period of 30 calendar days. Due to the employee’s sickness, the trial period was extended by 16 calendar days (ie, to the evening of July 16 2012). Applying the conventional 30-day notice period, the termination letter should have been sent on June 16 2012. The 30-day notice period would have begun on the morning of June 17 2012 and would have expired on the evening of July 16 2012.

However, notification of termination was sent on June 15 2012. Thus, in its October 25 2013 judgment the Labour Tribunal held that the notification of termination of the employment contract on June 15 2012 – during the employee’s incapacity for work – was too early and then abusive. To comply with the conventional 30-day notice period, the employer should have waited until June 16 2012, the first day that the employee was no longer protected against dismissal.(7)

The employee’s compensation for material damage is in principle limited to the loss of salary resulting from non-compliance with the period of protection from dismissal. In the present case, the Labour Tribunal considered that the employee had suffered no material damage for the following reasons:

• Had the employer not given notice on June 15 2012, it nonetheless would have been allowed to do so on June 16 2012 in compliance with the 30-day notice period, which would have expired within the extended trial period.

• The employee had received his salary until July 16 2012, the last day of the extended trial period.

Likewise, the Labour Tribunal held that no moral damage had been suffered because the trial period is not considered a guarantee of a definitive employment contract.

However, if a termination notice had been sent a few days later, the notice period would have exceeded the extended trial period. Thus, the employment contract would have become definitive. In such case, the employer would have had to pay potential damages and compensatory indemnity for its failure to comply with the common rules on notice periods.

In essence, the employer’s capacity to terminate the employment contract of an ill employee during his or her trial period is limited.

For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1), fax (+352 26 86 82 82) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be acessed at www.castegnaro.lu.


(1) Texts and case law mentioned in this update can be accessed at legiwork.lu.

(2) Article L121-5 of the Labour Code. The trial period must be no less than two weeks and no more than six months. Notwithstanding this, the maximum trial period must not exceed:

• three months for employees whose level of vocational training does not meet the level required for the certificate of technical and professional capacity of technical secondary education; and

• 12 months for employees whose monthly gross salary meets a level established by grand ducal regulation (presently €4,154.9112, current index 775, 17).

In any case, the trial period is not renewable.

(3) The trial period offers the advantage of a test period in which the employer may evaluate the employee’s skills and the employee can understand the nature of the entrusted work and the working atmosphere. Thus, the Labour Code considers that for any suspension of the trial period, the trial period must be extended (Article L121-5(2) of the Labour Code) to allow the parties to appreciate each other fully before the employment relationship becomes definitive.

Therefore, the trial period will in principle be extended not only due to the employee’s incapacity for work, but also for any days off offered to the employee. The Labour Code does not restrict the reasons for suspension; the amending bill for Article L121-5 of the Labour Code explains that any reason for suspension is allowed. The bill includes jurisprudence governing the extension of the trial period in case of suspension, especially in case of incapacity for work. This remedy applies to any case of suspension of the employment contract during the trial period (Amending Bill 3222, comments pp 28 and 29). However, where the suspension is expressly governed by another legal provision, Article L121-5(2) no longer applies (eg, Article L337-3 of the Labour Code, which concerns specific conditions of the trial period suspension due to the submission of a medical certificate attesting the employee’s pregnancy).

(4) Article L121-5 (4)(3) of the Labour Code.

(5) Court of Appeal Case 14530 (February 3 1994) and Court of Appeal Case 33438 (September 30 2009).

(6) Labour Tribunal Case 3910 (October 25 2013).

(7) In this case the trial period had been extended by 16 days and expired on July 16 2012, with the notice period set at the conventional 30 days. The Labour Tribunal noted that the form, process and consequences of a dismissal encompass the day of dismissal (ie, the day that the employee is notified of the dismissal by registered letter) because it is the day on which the wish to terminate the employment contract is expressed.