This decision recalls that, in accordance with Article L.121-5(3) of the Labour Code, the trial period cannot be renewed and therefore "a trial clause in a second contract, which is merely a continuation of a previous employment relationship, is therefore not valid; in other words, when the employer relies on the same employee under successive contracts, a new trial period is in principle not valid if these contracts are close together in time".
In this case, an employee was hired twice by the same employer, the first time under a permanent contract with a trial period of 3 months, ending with the employee's dismissal outside of the trial period the following year, and the second time three years later under a new permanent contract for the same position, again with a trial period of 3 months. The company finally terminated this second employment contract during the trial period.
The Labour Court of Luxembourg ruled in favour of the company and considered that the dismissal had taken place during a valid trial period.
The employee appealed this decision and contested the validity of the trial period, claiming arrears of wages and various indemnities arising from the termination of the employment contract.
The Court of Appeal specified "if there has been a genuine contractual break, an effective and real interruption of several months, the two hirings being independent of each other, the employer is allowed to arrange for a new trial period, even if the employee is rehired for the same activity".
In this case, "the second commitment having taken place one year later, the insertion by the employer of a trial clause in the second employment contract is therefore valid".