A female employee enjoys protection against dismissal as from the day on which she has delivered to her employer her certificate of pregnancy and this lasts for the 12 weeks following her giving birth (regardless of whether or not she breastfeeds her child).
Nota Bene
During that period, the employer is prohibited from giving notice of termination of the employment relationship (with notice or with immediate effect) and from inviting the employee to a pre-dismissal interview.
Every dismissal and every invitation to a pre-dismissal interview, notified in breach of the above-mentioned prohibition, ishttps://itm.public.lu/fr/ null and void.
In the event of notification of termination before delivery of a medical certificate attesting to the pregnancy, a female employee may, within a period of 8 days following the day on which she had, or could have had, notice of the dismissal letter, prove her condition by sending a certificate by registered post.
The employer will be obliged to cancel the dismissal. If the employer refuses, the pregnant woman may bring proceedings for a declaration of nullity. The same applies if the employer had been informed of the pregnancy before dismissing the employee.
A pregnant employee, confronted by a dismissal, must without fail, within 15 days following the day on which she had, or could have had, notice of the dismissal letter, submit an application to the president of the labour court for a declaration as to the nullity of the dismissal and for an order that the post should be maintained or that she should be reinstated, in the company.
On expiry of that period, the pregnant woman may no longer apply for a declaration of nullity of the dismissal but may, where appropriate, bring legal proceedings for unfair dismissal in the manner and within the time limits laid down by law.
Thus, a pregnant woman has 2 alternative (but not cumulative) remedies:
- an action for a declaration that the dismissal is void within 15 days; or
- an action for unfair dismissal.
In the event of serious misconduct on the part of the pregnant employee, the employer is authorised to suspend her immediately. The employer cannot directly dismiss the employee with immediate effect, but must lodge an application with the Labour Court seeking authority to terminate the employment contract.
Where the labour court refuses to accede to that request, the suspension is annulled and its effects are automatically negated.
Where an employer has suspended an employee pending a decision of the court, the employee may, in response to a request to be submitted to the court within 15 days following notification of the suspension, benefit from maintenance of her remuneration pending a definitive decision by the court.