Leave & Absences

Dismissal Protection During Sick Leave in Luxembourg

Can an employee on sick leave be dismissed? The answer depends on two factors: whether the employee has complied with the mandatory formalities, and how much time has elapsed since the start of incapacity. This guide covers the principle of protection, the conditions for benefiting from it, the exceptions, and the situations that bring the dismissal ban to an end.

Topic: Leave & Absences Sources: Art. L.121-6 · Art. L.124-10 · Art. L.124-12 · Labour Code Updated: 12 June 2026

Protection timeline

Key steps from the first day of incapacity to the lifting of protection:

  • Day 1 Notify the employer of the incapacity — triggers protection if the certificate follows.
  • Day 1 to 3 Submit the medical certificate — mandatory condition to activate dismissal protection.
  • For 26 weeks Absolute prohibition on dismissal or summons to a pre-dismissal meeting, even for serious misconduct.
  • After 26 weeks Dismissal becomes possible again, including for a reason that predates the sick leave.

1. The principle of protection

When an employee is incapacitated for work due to illness or accident, the employer may not notify termination of the employment contract, or summon the employee to a pre-dismissal meeting, for a period of up to 26 weeks from the day the incapacity arises (Art. L.121-6, para. 3).

This protection applies even where the employer invokes serious misconduct. It is not a mere recommendation: any dismissal notified during this period in breach of the rules is deemed unfair by operation of law (Art. L.121-6, para. 3; Art. L.124-12).

The protection is designed to prevent an employee's state of health from being used as a pretext or an opportunity to terminate the contract. An employer who proceeds with a dismissal during the protected period — even for a genuine reason — faces a finding of unfair dismissal before the labour courts.

2. The mandatory conditions for protection

Protection is not automatic. It depends on the employee fulfilling two successive obligations.

Condition 1 — Notify the employer on the same day

The employee must inform the employer (or their representative) of their incapacity on the very day it arises (Art. L.121-6, para. 1). This notification may be oral or written, given personally or through a third party.

Condition 2 — Submit the medical certificate within 3 days

The employee must provide the employer with a medical certificate attesting to the incapacity and its likely duration no later than the third day of absence (Art. L.121-6, para. 2).

If the medical certificate is not submitted before the end of the third day of absence, the dismissal protection provisions cease to apply vis-à-vis the employer (Art. L.121-6, para. 3). An employee who omits this formality loses statutory protection for the period in question and is treated as an ordinary employee for dismissal purposes.
Case 1 — Employee fully protected
Sick leave begins on Monday. Employer notified on Monday.
Medical certificate submitted on Wednesday (day 3).
→ Both conditions are met. The employee is protected for 26 weeks from Monday.
Case 2 — Certificate submitted too late
Sick leave begins on Monday. Employer notified on Monday.
The employee sees a doctor on Thursday and sends the certificate on Friday (day 5).
→ The 3-day certificate condition is not met. Dismissal protection under Article L.121-6 does not apply for this sick leave period.

3. Exceptions to protection

Protection does not apply in two situations expressly listed by law (Art. L.121-6, para. 4).

Exception 1 — Crime or voluntary offence

If the incapacity results from a crime or offence in which the employee voluntarily participated, protection does not apply. It is for the employer to prove the criminal origin of the incapacity if they rely on this exception.

Exception 2 — Formalities completed after receiving the dismissal letter

If the notification or medical certificate is submitted after receiving the dismissal letter or the summons to a pre-dismissal meeting, protection does not apply. The law prevents an already-dismissed employee from retroactively placing themselves under sick leave protection.

Exception to the exception — Emergency hospitalisation

If the employee was hospitalised in an emergency before or at the time of receiving the dismissal letter, and the certificate is submitted within eight days of hospitalisation, the dismissal notice (or summons) is null and void (Art. L.121-6, para. 4).

This rule protects employees who are physically unable to meet the deadlines (intensive care, life-threatening emergency) and cannot be penalised for their medical situation. A dismissal notified in those circumstances is neutralised once the certificate is provided within the 8-day window.
Case 3 — Emergency hospitalisation and simultaneous dismissal
An employee is hospitalised in an emergency on Monday evening. The employer, unaware of the hospitalisation, notifies dismissal on Tuesday.
The employee (or a relative) submits a hospitalisation certificate to the employer on Thursday (day 3 after hospitalisation, within the 8-day window).
→ The dismissal is null and void. Dismissal protection applies retrospectively from the start of hospitalisation.

4. End of protection and consequences of a breach

Expiry of the 26-week period

Once 26 weeks have elapsed, the employer fully regains the right to terminate the employment contract (Art. L.121-6, para. 5). This right resumes immediately the day after the protection period ends and may be exercised for any reason — including one that predates the sick leave.

Unfair dismissal in case of breach

Any dismissal or summons to a pre-dismissal meeting notified during the protection period is deemed unfair by operation of law (Art. L.121-6, para. 3). The employee may bring a claim before the competent labour court and seek damages (Art. L.124-12).

The employer cannot retrospectively invoke the seriousness of the employee's conduct to justify a dismissal made during the protected period. The protection is a matter of public policy: even serious misconduct committed before or during the sick leave cannot be sanctioned by dismissal within the 26-week window.

5. Special cases

Refusal of coverage by the CNS

If the CNS (National Health Fund) issues a refusal of benefit decision, the dismissal prohibition period ends at the expiry of the 40-day appeal period following notification of that decision (Art. L.121-6, para. 3).

However, if the employee lodges an appeal against the CNS decision within that period, protection is maintained for the duration of the appeal — but only within the legal maximum of 26 weeks. The appeal does not extend protection beyond that ceiling.

In other words: the CNS appeal preserves protection already accrued, as long as the 26-week period has not yet expired. It does not create any additional protection beyond 26 weeks. Luxembourg courts have expressly confirmed this principle: an appeal against a CNS refusal cannot have the effect of extending the protection period beyond the statutory ceiling of twenty-six weeks.

Unfitness confirmed by the occupational health doctor

Unfitness for work, duly confirmed by the occupational health doctor, does not constitute serious misconduct under the Labour Code (Art. L.124-10, para. 7). The employer therefore cannot base a dismissal for serious misconduct on a medically recognised unfitness — either during the protected period or outside it.

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The information in this guide is provided for informational purposes only and does not constitute legal advice. It may contain inaccuracies or may not reflect the latest legislative or case-law developments. For any specific situation, please consult a qualified legal professional.