The articles of association of the Caisse Nationale de Santé (hereinafter "CNS") lay down two fundamental prohibitions to be observed by employees on sick leave[1] :
· During a period of incapacity for work, no outings are permitted for the first five days, even if authorised by the doctor;
· Employees are not allowed to leave the country in which they are domiciled or affiliated during their period of incapacity for work
From the 6th day of his incapacity for work, the employee is also obliged to respect the hours for leaving his home. Outings are permitted between 10am and 12pm and 2pm and 6pm. Outside these hours, the employee is obliged to be at home in the event of an inspection.
In a ruling handed down on 6 July 2023[2], the Court of Appeal has confirmed that an employer may sanction an employee who does not comply with these provisions by dismissal with immediate effect.
In this case, an employee had been in the service of his employer, the State of the Grand Duchy of Luxembourg, since 1 December 1995, and was unable to work from 18 December 2019 to 3 April 2020. Going out was not medically contraindicated during this period.
By registered letter dated 20 April 2020, the employer notified the employee of his dismissal with immediate effect, on the grounds that, during his absences due to illness, he had failed to fulfil his obligations under the CNS bylaws on three occasions.
On his fourth day of incapacity for work, the employee took part in the commemoration day on 21 December 2019 as a flag bearer and, on 25 January 2020, in a carnival held in Germany (two and a half hours from his home), a country other than the one to which he was affiliated.
Finally, during a control visit on 21 February 2020 at 7.30pm, the employee was not at home, contrary to his obligation to be present from 6pm[3].
The employer therefore dismissed the employee with immediate effect on 20 April 2020, on the grounds that he had failed to fulfil his various obligations under the CNS bylaws relating to the sick leave scheme..
After receiving his letter of dismissal, the employee challenged the validity of his dismissal before the Labour Court.
At first instance, the Labour Court declared the employee's dismissal with immediate effect to be unfair. In particular, the judges ruled that "the individual acts of which the respondent is accused are not serious enough to justify dismissal with immediate effect, given the employee's length of service and the absence of any warnings.»
The employer therefore appealed against this judgement on the grounds that the employee had not complied with the provisions of the CNS bylaws, and had breached his obligation of loyalty and good faith arising from his employment contract.
Are an employee's private outings during sick leave serious enough to justify immediate dismissal?
In the judgment under review, the Court of Appeal found that "the three outings of which the employee was accused during his sick leave constituted a serious cause of definite gravity making it impossible, without damage to the company, to continue the employment relationship, the continuation of the employment relationship having been irremediably compromised and the essential mutual trust between the employer and the employee having been definitively broken".
The Court therefore considered that a breach of the CNS bylaws could constitute grounds for dismissal, as it was linked to the employee's conduct.
In fact, the employee violated the three fundamental prohibitions set out in the CNS's articles of association, according to which no outings are permitted during the first 5 days of incapacity for work[4], trips abroad must be authorised in advance by the CNS [5] and outings may be made between 10am and 12pm and between 2pm and 6pm [6] from the 6th day of incapacity for work.
These breaches had serious consequences, which, according to the Court, made it impossible to maintain the employment relationship with the employer.
The Court upheld the employer's arguments that the employee's conduct constituted a breach not only of his duty to perform his employment contract in good faith, but also of his duty of loyalty to the employer.
The Court found that the employee had seriously breached his duty of loyalty to his employer, and that his behaviour showed a real lack of commitment and motivation for the interests of the department to which he was assigned, which affected the State's image, in particular by publishing his private outings on social networks.
His behaviour was also said to have demotivated his colleagues, who were said to have resented the employee's behaviour, which was publicly displayed on social networks. The Court considered that the employee's outbursts constituted an affront to his colleagues.
When assessing the alleged misconduct leading to an employee's immediate dismissal, judges generally take into account the employee's work history and seniority.
In fact, the employee had already received a warning from the State on 21 March 2000, when he was reminded of the Collective Agreement for State Employees.
On the other hand, the Court considered that the State was under no obligation to sanction the employee's behaviour with a warning prior to dismissal.
Consequently, even if the employee had never been sanctioned before and had not received a warning, the dismissal would still have been declared justified by the Court.
The fact that the employee had 25 years' seniority, had only received one warning in the past and was in a precarious state of mental health due to post-traumatic stress disorder
In this regard, the Court of Appeal ruled that "even with 25 years' seniority, abuses committed during work stoppages cannot exceed a certain tolerance threshold".
As a result of this decision, an employee who is unable to work may be dismissed for serious misconduct if he fails to comply with the exit restrictions imposed by the CNS's articles of association, even if he has considerable seniority within the company.
The Court's severity in this decision could perhaps be explained by the fact that the employee's employer was the State of the Grand Duchy of Luxembourg.
Indeed, the grounds of the judgment emphasise the damage to the interests and image of the service resulting from the publicity surrounding the employee's behaviour.
However, it is not certain that the Court will systematically show such severity in the future, particularly if this is an isolated case of a breach of the exit restrictions imposed by the social security system. However, this judgment is of particular interest in assessing the scope of the employer's disciplinary powers in this respect.
[1] Articles 200 and 203 of the CNS by laws.
[2] Court of Appeal, 6 July 2023, roll number CAL-2022-00480.
[3] Article 200 of the CNS by laws.
[4] Article 200.a) of the CNS statutes
[5] Article 203 of the CNS Articles of Association
[6] Article 200.b) of the Statutes of the CNS
[1] Articles 200 and 203 of the CNS by laws.
[2] Court of Appeal, 6 July 2023, roll number CAL-2022-00480.
[3] Article 200 of the CNS by laws.
[4] Article 200.a) des statuts de la CNS
[5] Article 203 des statuts de la CNS
[6] Article 200.b) des Statuts de la CNS