Posted on 13 November 2018
At the beginning and ending of a contract in Luxembourg, there are two special periods: the trial period and the notice period.
1. What is a trial period?
In the case of a fixed-term or permanent contract, this is a trial period which 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.
a) Formal requirements:
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 be permanent ab initio.
b) 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.”
3. 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.
4. Renewal of the trial period:
A trial period cannot be renewed.
5. Cancellation of the trial period and notice periods
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)
6. Special case: duration of temporary work trial period
A temporary contract may include a trial period.