Last updated more than 5 years ago
An employee dismissed for reasons relating to the business' operating needs of the business can claim their priority for re-employment from their former employer, in the event that the business again seeks to hire someone at their level of qualification.
An employee who, at the end of their maternity leave, resigned in order to focus entirely on raising their child, can also claim their priority for re-employment from their former employer in the one-year period starting from the end of their maternity leave, for jobs corresponding to their qualification.
Who is concerned
Only the following persons can claim priority for re-employment:
- employees made redundant for economic reasons;
- employees who have not resumed their job after maternity leave in order to take care of their child.
The following persons cannot benefit from this measure: apprentices, dismissed employees who provided advance notice for personal reasons, employees dismissed with immediate effect for serious misconduct, employees who resigned at the end of their maternity leave for a reason other than to take care of their child, or employees whose fixed-term employment contract (contrat à durée déterminée – CDD) has not been renewed.
An employee may claim priority for re-employment during a one-year period and must submit their application within that same time period:
- for employees made redundant for economic reasons, the date when the year grace period starts is the date of their actual leaving of the business;
- for employees who resigned at the time of their maternity leave, the application must be submitted to the employer within one year of the end date of their maternity leave.
How to proceed
Procedures and conditions of priority for re-employment
- An employee who has been dismissed for economic reasons may apply for re-employment from their former employer in the event that the employer recruits new workers at their level of qualification. If the employee expresses in writing (on paper) the desire to enforce this priority, the employer must thereafter inform them of any job that becomes available for someone with their qualifications (otherwise, the employer is liable and may be required by law to pay damages and interests). Their application must be processed on a priority basis among all applicants. Priority for re-employment is not a guarantee of re-employment. Thus, re-employment cannot be guaranteed by the employer and it cannot be guaranteed that the employee will be able return to the exact position held prior to their departure. Former employees will only be informed of available positions that fit their profile. According to legal precedent, however, the employer does not have the right to give preference to another candidate with the same qualifications as the dismissed employee, citing their superior abilities or capacities. The employer, in fact, can only choose another employee in the case of absolute unfitness of the priority employee for the job available, and must be able to demonstrate the absolute unfitness.
- An employee wishing to focus entirely on raising their child and who, for that reason, resigned at the end of their maternity leave, can also claim priority for re-employment from their former employer for a period of one year, in the case of a vacancy corresponding to their level of qualification. If the employee expresses the desire to benefit from this priority, by registered letter with acknowledgement of receipt (on plain paper), the employer must thereafter inform them of any job that becomes available for someone with their qualifications. Their request must be processed on a priority basis among all applicants. Priority for re-employment of an employee who resigned during their maternity leave must not be confused with unpaid leave at the end of which the employee automatically returns to their position in the company.
Content of the application
The application must clearly state that the employee wishes to invoke their right to priority for re-employment citing the legal references serving as the basis of their request, for example: Article L.125-9 of the Luxembourg Labour Code for the employee made redundant for economic reasons and Article L.332-4 of the Labour Code for the employee who resigns in order to raise their child.
The employee who wishes to assert their priority for re-employment must send a written application to their former employer.
This application must be made by the employee who resigned following their maternity leave by registered letter with acknowledgement of receipt (on plain paper). However, a request made by registered letter without acknowledgement of receipt constitutes, according to legal precedent, a simple irregularity with respect to the proof that the employer has received the employee's request.
Concerning an employee made redundant for economic reasons, it is also advisable to send a registered letter with acknowledgement of receipt in order to avoid any dispute concerning the receipt of the letter at a later time.
As the case may be, the employer must inform the employee of any job that becomes available at their level of qualification. The form remains the same for job offers made by the employer, as well as for the refusal of these job offers by the employee (i.e. they must be made by registered letter with acknowledgement of receipt for the employee who resigns at the end of their maternity leave).
Acceptance and denial
Employees are free to accept or decline their former employer's job offer.
In case of acceptance, the new employment contract will be signed by the parties.
In case of re-employment of a employee who resigned after their maternity leave, the employee will receive all benefits they were entitled to prior to their resignation.
Forms / Online services
Modèle de demande de priorité de réembauchage suite à un licenciement économique
Modèle de demande de priorité de réembauchage après démission suite au congé de maternité/congé d'accueil