TRIAL PERIOD FOR A PERMANENT CONTRACT (CDI) AND A FIXED-TERM CONTRACT (CDD)
A trial period is not compulsory when the employer draws up an employment contract. However, it may be necessary to stipulate the trial period in the contract in order to assess the employee's skills and to thus ascertain whether the employee is suitable for the job.
During the trial period, both parties may terminate the contract between them without cause. The trial period should be mentioned in the employment contract, unless a compulsory trial period is already mentioned in the company's collective agreement.
THE FORMALITIES OF THE TRIAL PERIOD FOR A CDI OR CDD
The minimum duration of a trial period is two weeks, and the employment contract cannot be terminated during this period. In practice, it ranges from 3 to 12 months depending on the employee's function and remuneration but may not exceed this period on pain of cancellation of the trial period.
For example, if the employer has concluded a trial period of 4 months for an employee whose level of education is below the DAP (Diploma of Vocational Aptitude, formerly the CATP (Certificate of Technical and Vocational Aptitude for Secondary Technical Education), where the trial period cannot exceed 3 months, there will be a month's surplus which cannot be considered as part of the trial period. In the event of a breach of contract during this surplus month, the employer will be obliged to apply the legal notice period and to justify the reasons for the dismissal.
Otherwise, the dismissal is considered unfair.
- Trial period of maximum 3 months for unskilled employees (with a level below the DAP - diploma of professional competence), which also implies a minimum monthly gross unskilled salary;
- Trial period of a maximum of 6 months for employees with a CATP or DAP level or higher, which implies a minimum monthly gross skilled salary;
- Trial period of maximum 12 months for employees with a gross monthly salary equal to or greater than €4,155.00 (index 775.17).
SPECIAL CASES OF THE TRIAL PERIOD
The trial period cannot be renewed in the case of a renewal of a fixed-term employment contract for an employee occupying the same or a similar position in the company. There can only be one trial period for the entire duration of the combined employment contracts.
For fixed-term contracts (CDD), the trial period may comprise the entire duration of the contract provided that the maximum duration of the trial period is respected. In practice, the trial period does not exceed half the duration of the fixed-term contract. For example, if the employer concludes a 8-month fixed-term contract, the trial period cannot exceed 4 months.
In the event of suspension of the employment contract during the trial period (for sick leave in particular), the employer has the possibility of extending the trial period by the duration of the leave after the employee's return. However, the maximum extension is one month.
An employee's trial period is 6 months and runs from 1 January to 30 June. The employee is on sick leave from 1 June to 20 June; the employer will have the possibility to extend the employee's trial period by 20 days after returning from sick leave, i.e. until 20 July.
THE NOTICE PERIOD IN THE EVENT OF TERMINATION OF THE EMPLOYMENT CONTRACT DURING THE TRIAL PERIOD
In the event of termination of the employment contract during the trial period in the forms provided for in Articles L. 124-3 and L-124-4 of the Luxembourg Labour Code, a notice period must be respected and may not exceed:
- As many days as the duration of the trial period defined in the employment contract counts as a week if it is expressed in weeks (less than a month);
- 4 days per trial month defined in the employment contract (not less than 15 days or more than 1 month).
- The trial period cannot be terminated during the first 15 days;
- A trial period expressed in months can only be expressed in whole months;
- For a trial period of 3 weeks, the notice period is 3 days;
- For a trial period of 1 month, the notice period is 15 days, as it is impossible for the notice period to be less than this;
- For a trial period of 6 months, the notice period is 24 days;
- For a trial period of 12 months, the notice period is 1 month as it is impossible for the notice period to exceed this length.
Let's take our previous example;
If the employment contract is terminated during the trial period, and since the 24-day notice period is included in the trial period and ends on 30 June, the notice period should have started no later than 7 June. In the case of the extension of the 20-day trial period to 20 July, the notice period may begin no later than 27 June.
In the absence of this extension system, the notice period would end after the trial period. The employer would no longer be able to terminate the contract during the trial period, which would oblige the employer to respect the legal notice period and justify the reasons for the dismissal.