Neither employees nor their employers are to blame for late arrivals or absences caused by road or rail accidents or by snow or strikes which block airports, train stations and roads. What approach should an employee adopt in this kind of situation? What are the employees’ rights and responsibilities?
What to do when an incident causing a delay occurs
Employees who are late for work due to a case of force majeure or for reasons beyond their control must:
- immediately inform their employer of the delay or the expected duration of their absence;
The commuter train is late for technical reasons. Even in this circumstance, employees must make their best effort to inform their employer as soon as possible, by any means possible, of the cause of their absence as well as its foreseeable duration, depending on the circumstances, as the situation evolves.
- obtain evidence of the cause of the absence or lateness;
Request a certificate of the delay from the train company to provide to the employer as proof, or later present a copy of a newspaper article on the delay in public transport.
- find another means of transportation to get to work;
If the employee is not injured, they must make their best effort to get to work as soon as possible, using alternative means of transportation as necessary, unless their employer allows them to return home, for example, due to road blockages.
Remuneration during absence
Because the employee does not work during an absence, no salary is owed to them, unless:
- the employee was acting on behalf of the employer, but was unable to complete the task due to force majeure;
When employees travel at the employer's request, logically, the employer should pay their salary, even though not expressly required to do so by law. In concrete terms, the employee should continue receiving the same pay during their absence as that required by the employment contract, an internal rule or the collective agreement during the business trip itself.
- the employee works remotely during their absence;
- the employer decides to pay their employee, although they are not required to do so.
Not every reason for absence entitles the employee to be paid for the lost time. In fact:
- presenting documentation of an absence does not, in itself, 'justify' the absence in the eyes of the law. An employee can only be 'excused' for the reasons specified in the Luxembourg Labour Code.
- an employee can only be remunerated in cases of certain legally-defined causes of absence (e.g.: the employee is paid in the case of illness, but not during a strike).
In other words, providing a reason for an absence does not always mean there will be remuneration.
An employee presents their employer with proof that they were held at the police station for a traffic violation (infraction au Code de la route), which is why they were unable to show up for work on time. In this case, even though there is a documented reason for the employee's absence, they may be liable for disciplinary action from the employer for arriving late, depending on the circumstances. Moreover, if the employee refuses to make up for the lost time, they may not be paid for that time.
Should a dispute arise between the employee and their employer, the Labour Court shall hold jurisdiction.
What to do upon returning to work
- an employer cannot unilaterally deduct absences due to cases of force majeure from an employee's annual leave;
- an employee may ask their employer to extend their paid leave for the duration of absence caused by force majeure, if they still have paid leave remaining;
- the employer and employee may agree for the employee to make up the lost time, within the limits set by law: maximum 10 hours per day and 48 hours per week. Absences caused by accidents or cases of force majeure (mainly with regard to the business's facilities) may be made up within 2 months of resuming work;
- the employee and employer may agree to consider this period of absence as a sabbatical (such leave is normally not paid). It is also advisable to check the employment contract, the in-house rules and the collective agreement for any special conditions that must be respected.
Can an employee be penalised for being late or absent?
Justified absences due to force majeure or circumstances beyond the employee's control, which prevented the employee from seeking prior authorisation from their employer, cannot be a reason for dismissal. However:
- it is the employee's responsibility to provide proof of the reason for their absence. They must therefore be sure to obtain documentation of the reason for the absence or lateness;
- the employee may be penalised if their absence or lateness is partly their own fault.
- although trains are not operating due to a worker strike, the employee could have taken their car or a bus to go to work. In this case, the employee could be penalised for their absence, because it is not due to force majeure.
- all available means of transportation for going to work are unavailable. Employees who are victims of successive cancellations of trains, buses and planes are in an unforeseeable and insurmountable situation preventing them from going to work on the date initially planned to resume work. Consequently, employees' absences due to general unavailability of transport are normally considered justified, meaning that the employer cannot penalise the employees for these absences. In particular, being stranded in a foreign country in these conditions cannot be considered serious misconduct on the part of an employee, nor a genuine and serious reason relating to their personal behaviour.