RESIGNATION DUE TO SERIOUS MISCONDUCT ON THE PART OF THE EMPLOYER
An employee may resign from their employment without undergoing a notice period only if their desire to resign is triggered by serious misconduct of the employer. This is known as resignation for serious misconduct on the part of the employer. All employees, whether they are bound by a fixed-term contract or a permanent contract, are entitled to take this step if the circumstances justify it.
Serious misconduct on the part of the employer is any misconduct committed by the employer towards the employee which is deemed sufficiently serious to terminate their good employment relationship.
The employee is required to be able to justify this type of resignation by real and serious facts. Serious misconduct may comprise, for example, the repeated non-payment or late payment of wages, the employee's non-affiliation with the social security scheme, the repeated and systematic refusal of days off, or violence, insults, threats or sexual harassment on the part of the employer or on the part of an employee when the employer does not take action against the latter.
The employee is obliged to inform their employer of their wish to terminate their contract within a maximum of one month after the occurrence of the complained-of act. 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 specify that it is a resignation without notice due to serious misconduct. The employee does not necessarily have to explain the serious misconduct which triggered their resignation in the letter.
An employer who contests having committed serious misconduct may claim compensation in lieu of notice from the employee before the Labour Court.
The employee will only receive severance pay in exceptional cases:
- The employee may be entitled to compensation in lieu of notice if the Luxembourg Labour Court upholds the employer's serious misconduct
- If the employee was dismissed with notice and the employer commits serious misconduct after the notification of dismissal with notice, the employee is entitled to resign for serious misconduct. In this case, resignation for serious misconduct becomes the priority but does not deprive the employee of severance pay;
- The employee may be entitled to unemployment benefits if they bring the matter before the Labour Court and the serious nature of the employer's misconduct is recognised by the Court;
- The employee may claim damages from their employer if they are able to prove the damage suffered and if they are able to demonstrate the relationship between the serious misconduct and the damage suffered.