Maternity Protection Convention, 2000 (No. 183) - Luxembourg (Ratification: 2008)

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Article 8(1) of the Convention. Employment protection. Dismissal for serious misconduct. Burden of proof. In its previous comments, the Committee noted that sections L.337-1 to L.337-6 of the Labour Code prohibited dismissal during pregnancy and maternity leave but that if a woman committed serious misconduct, she could be dismissed with immediate effect subject to authorization by the labour tribunal. In this regard, the Committee asked the Government to indicate whether, in the course of this procedure, the employer was required to prove that the dismissal for serious misconduct was unrelated to pregnancy, childbirth and its consequences or nursing. Since there has been no reply to this question from the Government, the Committee recalls that, even though Article 8(1) of the Convention provides for the possibility for an employer to dismiss a woman on grounds unrelated to pregnancy, childbirth and its consequences or nursing, the burden of proving that such grounds are unrelated lies with the employer, pursuant to the same Article. The Committee once again requests the Government to inform it of any legal or procedural measure establishing the obligation for the employer to prove that the grounds of dismissal for serious misconduct are unrelated to pregnancy, childbirth and its consequences or nursing, particularly in the context of the procedure for requesting authorization from the tribunal provided for in section L.337-1 of the Labour Code.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 8(1) of the Convention. Employment protection. Dismissal for serious misconduct. Burden of proof. In its report, the Government confirms that although a pregnant woman is protected against dismissal with a notice period, she can be dismissed with immediate effect, pursuant to an authorization by the labour tribunal, if she commits an act of serious misconduct. The Committee requests the Government to indicate whether, as part of the established procedure, it is the employer who is required to prove that the dismissal for serious misconduct is unrelated to pregnancy or childbirth and its consequences or nursing.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee has examined the first report of the Government and wishes to receive additional information on the following points:

Article 6(7). Medical benefits. The report states that women giving birth are entitled to care of a midwife, medical assistance, stay in a maternity or clinic, pharmaceutical supplies and dietetic products for the newborn, according to article 26 of the Social Security Code. The Committee notes that in the latest available copy of the Social Security Code, dated 1 January 2011, article 26 has been repealed. The Committee therefore asks the Government to indicate the provisions of the legislation which ensure the types of medical care guaranteed by this Article of the Convention.

Article 8(1). Dismissal for a serious fault. The Committee notes that articles L.337-1 to L.337-6 of the Labour Code prohibit dismissal during pregnancy and maternity leave, except in case of a serious fault. The Committee requests the Government to explain whether the employer is required to prove that the dismissal for a serious fault is unrelated to pregnancy, childbirth and its consequences or nursing, in accordance with Article 8(1) of the Convention.

Parts IV and V of the report form. The Committee requests the Government to provide information on decisions by courts of law or other tribunals involving questions of principle relating to the application of the Convention, as well as the information on the number and the nature of contraventions reported.