On 23 July 2021, the Luxembourg Minister of Labour filed a draft law No. 7864 (hereafter the “Draft Law”) with the Luxembourg Parliament (Chambre des Députés) aimed at introducing into the Luxembourg Labour Code new provisions on the protection of employees against moral harassment at work.
Background
To date, moral harassment is not specifically regulated by the Labour Code but has been recognised by the Labour Courts and by the Convention on Harassment and Violence at Work dated 25 June 2009, which was declared generally binding by a Grand Ducal Regulation dated 15 December 2009.
In this context, the draft law aims at introducing a definition of moral harassment into the Labour Code, and at establishing a protection of the employee against moral harassment at work, as well as preventive measures against it. The draft law also aims at protecting employees who would protest against or refuse to engage in harassing behaviors.
Scope of application
The following categories of persons may be considered as victims of moral harassment:
- employees;
- trainees;
- apprentices;
- students working during the holiday period.
The Draft Law also provides that the following persons must refrain from any act of moral harassment in the workplace:
- employers;
- employees;
- any client or supplier of the company.
Definition of moral harassment
The Draft Law provides for a broad definition of moral harassment and covers the following acts:
- any behavior or act, as well as any conduct which, by its repetition or systematization, is detrimental to the dignity or the psychological and physical integrity of a person by creating an intimidating, degrading, humiliating, hostile or offensive environment; as well as
- repeated acts which have the purpose or effect of degrading working conditions, likely to infringe the employee’s rights and dignity, to alter his/her physical or mental health or to jeopardize his/her professional future.
The scope of application of the new provisions set out in the Draft Law would be even broader as this definition would cover any moral harassment that would occur:
- during working relationships; but also
- during professional trips, professional trainings and communications in connection with or caused by work, by any means and even outside normal working hours.
Employers' obligations in the event of moral harassment
Pursuant to the Draft Law an employer must ensure that any act of moral harassment against his employees which he is made aware of, ceases immediately. To this end, the employer must determine, after consultation with the staff delegation, if any, or, failing this, the entire staff, the measures to be taken to protect the employees against moral harassment at the workplace.
These measures, which should be adapted to the nature of the activities and the size of the company, should cover at least:
- a description of the means available to victims of mobbing to obtain help and the way to address the staff delegation, which is competent in matters of prevention and protection against moral harassment at work;
- the prompt and impartial investigation of acts of mobbing in the workplace;
- the welcoming, assistance and support required by the victims of mobbing;
- the awareness raising of employees and managers on the definition of mobbing, its management within the company and the sanctions against its perpetrator(s);
- the measures for supporting and helping victims of mobbing to resume work;
- the employer's obligations in the prevention of mobbing at work;
- information and training of employees.
In the event of moral harassment of an employee, the employer should also:
- carry out internal assessment of the efficiency of the preventive measures as well as the possible implementation of new preventive measures to be taken, in particular with regard to the organization of the company, the revision of procedures applied in the event of moral harassment and the information of employees; and
- take the appropriate measures to stop immediately any moral harassment acts he has been informed of.
Employees’ rights in the event of moral harassment
The draft law provides that if the moral harassment continues after preventive measures have been applied or if the employer doesn’t take any appropriate measures, the employee or the staff delegation (with the approval of the concerned employee) could refer the case to the Labour and Mines Inspectorate (”Inspection du travail et des mines” or “ITM”).
After examination of the file and hearing of the different parties, the ITM prepares a report within 45 days from the date of the deferral. The report would contain recommendations and concrete measures to stop the moral harassment acts within a defined deadline. In case of non-compliance, the ITM could impose administrative fines.
The employee who is subject to moral harassment has the right to refuse to resume work and terminate his/her employment contract without notice for gross misconduct of the employer. In such case, the employee could claim damages before the Labour Court.
Protection against retaliation
According to the draft law, the employee victim of moral harassment or who has testified would be protected against any retaliation from the employer or any other supervisor, co-worker or external person connected with the employer. As a result, any reprisal (including dismissal) would be deemed null and void.
In case of dismissal, the employee has the following remedies:
- he/she could bring an action before the President of the Labour Court, for annulment of the dismissal, within 15 days from the notification of the termination. The President of the Labour Court could order that the employment relationship be maintained or, where applicable, the reinstatement of the employee.
- alternatively, he/she could bring an action before the Labour Court for unfair dismissal and claim compensation for damages. Such damages could be awarded to the employee not only for the damage suffered by the employee as a result of the dismissal, but also, where applicable, for the damage suffered as a result of the moral harassment of which the employee was a victim during the employment relationship. It nevertheless remains to be determined how the court will assess the amount of the damages to be awarded, where applicable, to the employee as a result of the moral harassment.
Increased role of the staff delegation
An important role in the prevention and fight against moral harassment would be played by the staff delegation, which would ensure the protection of employees against any act of moral harassment in the course of their work relationships.
In this context, the draft law provides that the staff delegation could:
- suggest to the employer any preventive action deemed useful and necessary;
- assist and advise the employee victim of moral harassment.
In addition, an employee victim of moral harassment could ask to be accompanied and assisted by a member of the staff delegation during the interview which would take place in the context of the investigation conducted by the ITM.
Criminal penalty
Infringement to the legal provisions on moral harassment would be punishable by a fine of between EUR 251 to EUR 2,500. In the event of a repeat offence within two years, these amounts may be doubled.
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