Dismissal Procedure in Luxembourg: Pre-Dismissal Interview and Notification

1. The pre-dismissal interview: when is it mandatory?

The pre-dismissal interview is a mandatory step only for employers employing at least 150 employees (Art. L.124-2). Below this threshold, no statutory provision imposes this formality — unless an applicable collective agreement expressly provides otherwise.

The headcount is assessed at the time the procedure is initiated. Where the company is close to the threshold, careful attention should be paid to the method of calculation provided for in the Labour Code, taking into account in particular part-time employees on a pro-rata basis.

For companies below the statutory threshold and whose collective agreement does not provide for an interview, the employer may notify the dismissal directly by letter, ensuring that its content meets the statutory requirements as to form and statement of grounds.

2. The convocation to the pre-dismissal interview

Where the pre-dismissal interview is mandatory, the convocation must satisfy precise requirements as to form and timing (Art. L.124-2).

Form of the convocation

The convocation must be sent to the employee by registered letter with acknowledgement of receipt or by any written document handed over in person against a receipt. It must explicitly state: the purpose of the interview (the dismissal being contemplated), as well as the date, time and venue at which it will take place.

A copy of the convocation must be simultaneously sent to the staff delegation. This formality is substantive: its omission exposes the employer to a procedural irregularity.

Convocation time limit

The interview may not be scheduled earlier than the second working day following the sending or delivery of the convocation (Art. L.124-2). This minimum period is designed to guarantee the employee enough time to prepare their defence and, where appropriate, to choose their assistant.

3. The conduct of the pre-dismissal interview

The interview is an adversarial exchange: it cannot consist merely of a unilateral announcement of the decision (Art. L.124-2).

The employer's role

The employer — or their authorised representative — is required to set out the grounds for the dismissal being contemplated and to hear the employee's explanations. The interview must allow the employee to put forward their observations before the decision is finally made.

The employee's right to be assisted

During the interview, the employee may be assisted by a colleague of their choice from within the company, or by a representative of a nationally representative trade union present in the staff delegation (Art. L.124-2). An employee who wishes to be assisted should inform the employer, if appropriate in their response to the convocation.

4. Notification of dismissal: time limits and form

Once the interview has been held, the employer has a precise time window within which to notify the dismissal. These time limits are a matter of public policy and cannot be varied by contract (Art. L.124-2).

The employee's absence from the interview — whether deliberate or not — does not block the procedure: the time limits run from the date fixed for the interview, not from a rescheduled replacement interview.

The dismissal letter must moreover state the real and serious grounds for the termination, in accordance with the requirements of Article L.124-5. The absence of a written statement of grounds is sufficient in itself to render the dismissal wrongful, regardless of any procedural irregularity.

5. Special protections and grounds for nullity

Certain personal circumstances of the employee suspend or prohibit the initiation of the dismissal procedure. Violations of these protections generally render the dismissal void — a more severe sanction than a mere procedural irregularity.

Incapacity for work (illness or accident)

The employer may not notify the dismissal letter or the convocation to the pre-dismissal interview during a period of incapacity for work, up to a maximum of 26 weeks from the start of the incapacity (Art. L.121-6). This protection is conditional upon the employee having fulfilled their obligations: notifying the employer of their absence within the required time and submitting the medical certificate without delay.

Pregnancy and maternity

It is prohibited to notify the termination of contract or a convocation to the pre-dismissal interview to an employee whose pregnancy has been medically confirmed, as well as during the 12 weeks following childbirth (Art. L.337-1). This prohibition is absolute and admits no exception based on the ground for dismissal.

Staff delegates

Titular and alternate staff delegates benefit from enhanced protection against dismissal. Any dismissal or convocation to a pre-dismissal interview targeting them — including for serious misconduct — is null and void in the absence of prior authorisation (Art. L.415-10). This nullity is a matter of public policy.

Collective redundancies and the social plan

In the context of a collective redundancy, any convocation to a pre-dismissal interview or dismissal notification for a ground not inherent to the employee personally is void if it occurs before the social plan is signed or before the minutes of the National Conciliation Office are drawn up (Art. L.166-2). This rule is designed to ensure that the staff representative consultation procedure has run its full course before individual terminations are initiated.

Protection against retaliation

Any dismissal notification or convocation to a pre-dismissal interview pronounced in retaliation for the employee's exercise of statutory rights — filing a complaint, lodging an appeal, acting as a witness in proceedings — is expressly prohibited (Art. L.010-2). A dismissal characterised by a direct causal link with the exercise of such a right is void.

6. Procedural irregularity and wrongful dismissal

Luxembourg labour law draws a distinction between procedural defect and wrongful dismissal — two classifications that do not carry the same legal consequences.

A dismissal that is irregular due to a procedural defect is one that was pronounced without complying with the procedure laid down by Article L.124-2 — for example, the omission of the pre-dismissal interview in a company with 150 or more employees, failure to observe the convocation time limit, or notification of the letter outside the statutory deadlines. The dismissal remains valid on the merits if the grounds are real and serious, but the employer is exposed to a damages award compensating the prejudice caused by the procedural defect.

A wrongful dismissal is one that is not based on real and serious grounds or that violates the provisions of Article L.124-5 (absence of written statement of grounds). The sanction is heavier: compensation for the loss suffered, assessed at the sovereign discretion of the labour court taking into account in particular the employee's seniority, age, family situation and difficulties in finding new employment.