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

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

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.