On 14 March 2023, the Luxembourg Parliament (Chambre des députés) adopted the long-awaited law aiming at introducing into the Labour Code a new chapter regarding the protection against moral harassment in the context of work relationships (the “Law”). The Law will enter into force on 9 April 2023.
Background
To date, moral harassment is not specifically regulated by the Labour Code but has been recognised by the labour courts and most of all by a convention on harassment and violence at work of 25 June 2009, which was declared generally binding by a Grand-Ducal Regulation of 15 December 2009. This convention introduced a definition of moral harassment and violence at work into the Luxembourg's legislative landscape. It however quickly proved to lack efficiency, insofar as it has not offered any effective remedy for employees who may be subject to retaliation measures, nor has it provided for sanctions for those who fail to comply with the obligations set out by the convention.
In this context, the adoption of the Law was more than expected and necessary, at a time when moral harassment in the workplace is on the rise (according to the results of the 2019 Quality of Work Index survey conducted by the employees’ chamber (Chambre des salariés), moral harassment in the workplace has increased from 12.4% in 2014 to 18.1% in 2018).
Definition of moral harassment
The Law introduces into the Labour Code a new chapter VI “Moral harassment” under title IV “Equal treatment of men and women and fight against harassment in working relationships”. The new Article L.246-2 of the Labour Code defines moral harassment. The definition is very broad and covers any conduct which, by its repetition or systematization, is detrimental to the dignity or the psychological and physical integrity of a person.
This definition has been shortened in comparison to the one suggested in the draft law, which included repeated acts having 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.
One of the major achievements of the Law, which further broadens the definition of moral harassment, is that it covers any act of moral harassment that may 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. This provision tends to include in the scope of application of the Law any behaviors or acts of moral harassment that may occur outside the employee's usual place of work.
As per the categories of persons that can be considered as victims of moral harassment, the Law covers, in line with the 2009 convention, any employees, trainees, apprentices, or students working during the holiday period.
The Law finally provides that employers, employees but also any client or supplier of the company must refrain from committing any act of moral harassment in the context of work relationships, thus extending the scope of application of the Law to persons outside the employers’ premises and organisation.
Employers' obligations in the event of moral harassment
The employer must ensure that any act of moral harassment affecting its employees that comes to its attention, ceases immediately.
To this end, as a first step, the employer must determine, after information of and consultation with the staff delegation (or the entire staff), preventive measures to be taken to protect the employees against moral harassment.
According to the Law, these measures, which should be adapted to the nature of the activities and size of the company, should cover at least:
- a description of the means available to victims of mobbing to obtain, in particular the welcoming, assistance and support required by the victims, the measures for their care and their return to work, as well as the manner of addressing the staff delegation;
- the prompt and impartial investigation of acts of mobbing in the workplace;
- the awareness of employees and managers on the definition of mobbing, its management within the company and the sanctions against its perpetrator(s);
- the information of the staff delegation or, failing that, the entire staff, of 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 Law imposes on the employer the obligation to carry out an internal assessment of the efficiency of these preventive measures as well as the possible implementation of new preventive measures to be taken. Such assessment must be made in consultation with the staff delegation (or the entire staff).
When harassing behavior in the workplace is brought to the employer's attention, the Law further imposes on the employer the obligation to take appropriate measures to immediately stop the harassment. The Law remains nonetheless silent on the nature of such measures. In our opinion, depending on the case, these measures could include the separation or reassignment of the employees concerned, layoffs, warnings or terminations with notice or immediate effect.
Employees’ rights in the event of moral harassment
The Law provides that if the moral harassment continues after preventive measures have been implemented or if the employer doesn’t take any appropriate measures, the employee or the staff delegation (with the approval of the concerned employee) can refer the case to the Labour and Mines Inspectorate (“ITM”).
The Law provides for an entire investigation procedure to be carried out by the ITM:
- the ITM hears the employee who alleges that he/she is the victim of moral harassment in the course of his/her work relationship, the alleged harasser as well as any other employees and the employer;
- following the investigation of the case and the hearings held, the ITM draws up a report containing, where appropriate, recommendations and proposals for measures to put an end to the acts of mobbing;
- no later than 45 days after receipt of the file, the director of the ITM must forward the complete report to the employer concerned and order him to take the necessary measures to put an immediate end to any acts of harassment within a period of time determined in accordance with the elements of the report (such “necessary measures” are however not defined by the Law);
- in the event of failure to comply with the injunction, the director of the ITM is entitled to impose an administrative fine on the employer, which can be up to EUR 25,000.- (or twice this amount in the event of repeated offence).
It is noteworthy that there is no reference in the Law to the presumption of innocence, which should apply during the entire investigation of the ITM, nor to the principle of confidentiality.
In addition to the above, the Law enables the employee who is subject to moral harassment to refuse to resume work and terminate his/her employment contract without notice for gross misconduct of the employer. In such case, the employee will be entitled to claim compensation for damages before the labour court.
Protection against retaliation
The Law establishes a protection of the employee who protests against or refuses harassing behaviors, or who has testified of acts of moral harassment. The employee is 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) will be deemed null and void.
In case of dismissal, two legal remedies are available to the employee:
- the employee can bring an action before the President of the labour court, for annulment of the dismissal, within 15 days from the notification of the termination;
- alternatively, the employee can bring an action before the labour court for unfair dismissal and claim compensation for damages. The Law provides that such damages can 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 in the latter case.
Role of the staff delegation
An important role in the prevention and fight against moral harassment will be played by the staff delegation, which is entrusted with the role of ensuring the protection of employees against any act of moral harassment in the course of their work relationships.
In this context, the Law provides that the staff delegation can:
- suggest to the employer any preventive action deemed useful and necessary;
- assist and advise the employee victim of moral harassment;
- assist an employee victim of moral harassment during the interview which can take place in the context of the investigation conducted by the ITM.
Criminal penalty
Failure to comply with the relevant obligations of the Law is punishable by a fine of between EUR 251.- and EUR 2,500.- (or twice these amounts in the event of a repeat offence within two years).
Conclusion
The adoption of the Law is certainly a major step forward for the Luxembourg legislative process, which has been waiting for a long time for an anti-mobbing law that would fill the gaps of the 2009 convention. The effective compensation of employees who are victims of moral harassment in the workplace will nevertheless remain difficult, insofar as the Law leaves it to the employee to prove the alleged acts of moral harassment, a proof that turns out to be extremely difficult to provide in practice.
Share on
