Trial and notice period
The trail period
What is a trial period?
In the case of a fixed-term or a permanent contract, this is a period worked on a trial basis and it is subject to special conditions.
Its purpose is to test the worker’s skills and his working abilities. It also enables the worker to decide whether the work suits him.
In order to be valid, the trial clause must:
- be set out in writing;
- for each worker individually;
- at the latest when the worker starts working.
The employment contract containing the trial clause must be signed at the latest by the first hour at work, otherwise it will have no legal validity.
If the clause in the employment contract is signed after the worker joins the firm or if the period is agreed verbally, the clause will be invalid, and a period agreed orally will therefore not be valid and cannot take effect.
=> If this is not done correctly, the Employment contract will be deemed to a permanent ab initio.
Duration of the trial period
Principle: the trial period cannot be shorter than 2 weeks or longer than 6 months (except in certain cases, see below).
The maximum length of the trial period may vary according to the salary and level of employee’s education :
- A maximum of 3 months for employees not receiving the minimum wage
- A maximum of 6 months for employees receiving the minimum wage
- A maximum of 12 months for employees whose initial monthly salary is at least equal to or higher than approximately 4,365.18 (depending on the Grand-Ducal Regulation)
NB: If the parties have agreed on a trial period which is longer than or equal to the legal duration, it will not invalidate the entire clause in question but only the part covering the period exceeding the legal duration, the rest remains in force.
“A trial period of not more than one month must be set expressed as whole weeks; a trial period in excess of one month must be expressed as whole months.”
Suspension of the trial period
The trial period shall be extended for a period equal to the suspension but not for more than one month.
- In the event of illness: extension of the trial period for a duration equal to the suspension, with a maximum of 1 month. During the trial period, employees who are absent due to illness shall also benefit from protection against dismissal on condition that they have duly informed the employer on the first day of their inability to work and have sent in a medical certificate within 3 days. However, if the absence due to illness exceeds the trial period, the employer shall be entitled to cancel the contract. In this case, the end of the notice period shall correspond to the end of the trial period
- Exception: pregnant women => it will be suspended from the day of submission of the medical certificate attesting to the pregnancy until the beginning of the maternity leave.
Renewal of the trial period
A trial period cannot be renewed.
Cancellation of the trial period and notice period
Principle: the contract cannot be terminated unilaterally during the minimum two-week trial period EXCEPT: => On serious grounds resulting in immediate termination of the contract
After the two-week period, the trial period may be ended by both parties:
- By registered letter with acknowledgement of receipt or personal handover with signature on the copy of the letter of cancellation acknowledging receipt
- No need for a prior interview (differs according to the authors) - obligatory if dismissal with immediate effect
- No indication of grounds unless the employee asks for this (except in the case of dismissal with immediate effect)
Special case: duration of temporary work trial period
A temporary contract may include a trial period.
The duration of the notice period
The duration of the period of notice depends on the length of continuous service of the employee with the employer.
NB: This period cannot include suspensions or interruptions. The end of the notice period cannot, therefore, be delayed due to illness or accident.
It is not possible to stipulate that the worker must comply with a notice period longer than the legal period when a clause to this end would be contrary to public policy. On the other hand, it is possible to stipulate that the employer must give a notice period longer than the legal period if this clause benefits the worker.
Notice during the trial period
Expressed in days and calculated in relation to the duration of the trial period as set forth in the contract of employment.
NB: the notice period cannot fall after the expiry of the trial contract, otherwise the contract will become a fixed term contract. The notice period must be contained within the trial period!
The starting point of the period of notice
The notice period can only start in relation to the employee:
- On the 15th day of the month during which the termination of the contract was notified, if the notification came before this date (i.e. no later than the 14th day of the month);
- The 1st day of the calendar month following the month in which the termination was notified if the notification was subsequent to the 14th day of the month.
Start of notice period: the date when the letter was posted OR the letter was handed over.
Sources and information: the Luxembourg Labour Law
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