Legal background

As new information and communication technologies continue to be developed, employees are increasingly connected to their business phones or computers outside their working hours. As such, the line between employees’ private and professional lives has become blurred.

The Labour Code does not expressly provide for a right to disconnect. However, certain provisions set out safeguards to overcome this legal vacuum. For example:

• The protective rules regarding employees’ working hours must be respected.
• Employers have a general obligation to ensure the health and safety of all employees (Article L 312-1 of the Labour Code).
• The Convention on the Legal Regime of Telework (15 December 2015) indirectly evokes the need to regulate the availability of teleworkers. This agreement was declared to be a general obligation in the Grand Ducal regulation of 15 March 2016 published in Mémorial A 45 on 23 March 2016.

Facts

A restaurant manager was dismissed with immediate effect for, among other things, having an aggressive and inappropriate attitude towards his supervisor.

The employer justified the dismissal with an email that the employee had sent to his supervisor. In this email, the employee had informed his supervisor that he was on a family holiday and asked him to stop ‘harassing’ him at such a late hour. The employer also reproached the employee for other behaviour, including:

• his lack of professionalism;
• his use of company funds for private purposes;
• signing employment contracts without authorisation; and
• the fact that he had been in negotiations with another company.

The employee claimed that his dismissal was unfair and challenged the accuracy and seriousness of the reasons given.

Decisions

At first instance, the Labour Court considered the dismissal to be justified. However, the Court of Appeal took a different view.

As regards the employee’s aggressive and inappropriate attitude towards his supervisor, the Court of Appeal considered that this had been well proven, particularly by the email in question.

However, the Court of Appeal held that it was necessary to consider the context of the conflict between the employee and his supervisor. The court noted that the employee had sent the email at issue in response to an email sent by his supervisor the previous evening. This email was just as inappropriate as the employee’s response; in it, the supervisor had reproached the employee for failing to help solve a problem at the restaurant and thus ignoring his instructions.

The Court of Appeal held that the employee could not have helped solve the problem while on holiday and recognised that regardless of his role as manager, the employee had been entitled to disconnect from work while on leave and not be approached by his supervisor at night and in a threatening manner.

Thus, based on the circumstances of the case, the Court of Appeal rejected the finding that the employee had acted aggressively and inappropriately.

The Court of Appeal also dismissed all of the other grounds on which the dismissal with immediate effect had been based, either for lack of accuracy or seriousness. As a result, the employee’s dismissal was declared to have been abusive.

Comment

In the current climate where the balance between personal and professional life is a key political concern, the Luxembourg courts have, for the first time, recognised the existence of employees’ right to disconnect.

Court of Appeal, 2 May 2019, 45230.