Resignation of the employee with notice

RESIGNATION WITH NOTICE: FORMALITIES IN LUXEMBOURG

An employee who wishes to terminate the employment relationship between them and their employer has the possibility to do so by resigning. The employee must give notice to give the employer time to reorganise. Resignation with notice can be considered at any time for employees in permanent contracts. On the other hand, for employees in fixed-term contracts, in principle resignation is only possible during the trial period.

THE FORMALITIES

The employee is required to clearly and genuinely express their desire to resign to the employer. Therefore, the resignation must be notified in writing either by sending a letter of resignation by registered post or by hand delivery (signed in duplicate).

The letter of resignation must state that it is a resignation with notice, but the employee does not have to justify the reasons for resigning. 

DURATION OF THE NOTICE

• Resignation during the trial period

The employee has the option of resigning during the trial period (regardless of the type of contract, whether fixed-term or permanent) after the first 15 days of the trial period have elapsed.  The notice period begins on the day following the date of notification. However, it is essential that the notice period begins and ends during the trial period. Otherwise, the same conditions as resignation during a permanent contract apply and the notice period is at least one month.

The length of the legal notice period depends on the length of the trial period:

• Resignation during a fixed-term contract (CDD)

The employee may in principle only resign during the trial period provided for in the employment contract.
However, according to case law the employee's resignation must be accepted by the employer if the employee meets the same conditions as a resignation during a permanent contract.

The employee may also have recourse to the termination of their employment contract by mutual agreement.

• Resignation during a permanent contract (CDI)

The notice period begins either on the 15th of the current month if the letter of resignation is notified before the 15th of the month or on the 1st day of the following month if the letter of resignation is notified between the 15th and the last day of the current month. The length of the notice period varies according to the employee's seniority in the company:
- Seniority of less than 5 years: 1 month's notice;                                                                                                                                                                                

- 5 to 10 years' seniority: 2 months' notice;                                                                                                                                                                                                                     

- 10 years' seniority or more: 3 months' notice.

Example

Two employees each enter into a permanent employment contract starting on 1 January with a 6-month trial period ending on 30 June.

The first employee notifies his employer of their resignation on 6 June, i.e. during their 6-month trial period. For a trial period of this length, a statutory notice period of 24 days for resignation during the trial period applies. By simulating the application of this legal notice period, it can be seen that it starts on 7 June and ends on 30 June. The notice period begins and ends during the trial period and the resignation is therefore effective as of June 30.

The second employee notifies their employer of their resignation on 7 June, also during their 6-month trial period. By simulating the application of the legal notice period for resignation during the trial period (24 days), it can be seen that the notice period starts on 8 June and ends on 1 July. The notice period starts within the trial period but does not end within it. In this case, this notice period does not apply, but the legal notice period of resignation outside the trial period does. The notice period is therefore one month, starting on 15 June and ending on 14 July.

THE DEPLOYMENT OF THE NOTICE PERIOD

Days off

The employee is free to take their remaining days off or not during the notice period. The employer cannot oblige them to take them, but however they can refuse a requested period of leave if this is justified for the needs of the company. If the employee has any remaining days off at the end of the notice period, the employer must pay them compensation for leave not taken.

Periods of sick leave

An absence from work due to illness does not extend the notice period. This remains the case even if the employee is absent for the entire notice period.

Exemption from work during the notice period

The employer may choose to exempt the employee from the obligation to come to work during the notice period. The employee must be entitled to the continuation of their salary and other benefits to which they would have been be entitled if they came to work.

The employee may start working for a new employer during the notice period. In this case, they do not benefit from salary maintenance by their former employer. However, if their remuneration with their new employer is lower than that of their former employer, they must be paid the difference by their former employer until the end of the notice period.

If the employee requests to be released from working during the notice period and the employer agrees, the resignation is re-categorised as termination by mutual agreement.

COMPENSATION

Resignation does not give rise to any compensation to the benefit of the employee, i.e. the employee receives neither severance pay nor unemployment benefit. 

On the other hand, the employee is entitled to the benefits provided for in their contract, such as their 13th month (pro rata).