In its latest newsletter De Guichet.lu, details the procedure to apply by employees when delays and absences from work occur due to force majeure or event independent from one’s will. It also explains what the law tells in such context.

A dysfunction in the air or railway traffic, strikes, congestion as well as the weather can certainly cause delays or absences. Despite such chaotic travel environment, employees have obligations to fulfil vis-à-vis their employer. And avoiding them could lead to sanctions.

What should employee do when an incident occurs and may cause such a delay? If he knows he will come late to his workplace, due to force majeure or circumstances beyond its control, he shall fulfil three obligations.

According to the latest newsletter of De Guichet.lu, the portal of the Luxembourg administrative authorities, the employee must first immediately notify the employer about his delay and the expected length of the absence. Moreover, he will need to produce proof of the cause of the absence or late arrival. Finally, he shall seek another way to get to work.

In this case, “If he has not suffered damage, the employee must indeed do its best to come to his workplace as soon as possible, if necessary by alternative means of transport, unless the employer allows him to go home, for example due to road congestion. ”

Sanctions are possible

Has the employee not fulfilled its obligations in such circumstances, sanctions from the employer are possible. For the legislator indeed the employee may be sanctioned if the absence or delay is partly his fault. The fair sanction is then left to the discretion of the company.

However this type of absence – which made the employee unable to seek prior autorisation from his employer – does not constitute grounds for dismissal, De Guichet.lu states that the burden of proof is however on the employee: “It is the employee to provide evidence of his absence. He must therefore be careful to constitute evidence of the cause of the failure or delay,” the public portal explains. As an example, it hence suggests, to request a certificate from the railway company as an evidence to the employer, or reproduce a subsequent section of the newspaper reporting on the delay in public transportation. ”

A payroll deduction is legal

As the performance of work did not take place, the salary is not due and the employer may make deductions from wages. Unless it is a mission for the employer to which the employee was unable to travel due to force majeure, or if the employee works at a distance during his absence.

According to De Guichet.lu however, “any justification of absence does not give the employee a right to be paid for the lost hours.” Furthermore “the employee will be paid for some of legal causes of absence only (for example in case of sickness, but not during a strike).” Whatever the case indeed, the withheld amount must be strictly proportional to the duration of the absence.

Time lost can be recovered

When returning to work, the time lost recovery issue arises. Indeed, the employer cannot deduct this missed time from the employee’s annual paid holiday.

Indeed, three solutions therefore are possible: either the employee asks his employer to extend his paid leave for the duration of his absence due to force majeure, if some days remain; or, both the employer and the employee agree that the latter recovers the lost hours within legal limits (with a maximum of 48 hours per week and 10h/day). Or, the two sides consider the period of absence as a sabbatical leave. In the latter case, such leave will be unpaid.
Marc Alison