The law amending the Labour Code to implement a new regime for protection against moral harassment at work has been published on 5 April 2023 and will enter into force on 9 April 2023 ("the Law").
Until now, Luxembourg did not have a legal framework on moral harassment. The only existing mechanism was the Convention of 25 June 2009 on harassment and violence at work, signed between the trade unions, OGB-L, LCGB and the Luxembourg employer’s association ("UEL”) transposing the autonomous European framework agreement, declared to be of general obligation by the Grand-Ducal regulation of 15 December 2009 ("2009 Convention").
In a press release of 27 February 2023, the UEL denounced the absence of social dialogue and asked for the withdrawal of the Bill n° 7864. Moreover, it claimed that the government had ignored the 2009 Convention and that the existence of two separate regimes represented a legal risk for employers.
The Chamber of commerce and the Chamber of trades had made the same observation in a joint opinion of 4 February 2022, while the Luxembourg confederation of commerce and the ASBL Mobbing also expressed their reservations.
After several months of parliamentary work, and despite divergent opinions, the Law finally comes into force today introducing specific legal provisions within the Labour Code.
I. Definition of moral harassment
In an opinion of 10 May 2022, the Council of State considered that the coexistence of several definitions of "moral harassment" infringed the principle of equality before the law elaborated under Article 10bis of the Constitution.
Consequently, the definition initially proposed has been replaced by the definition in force in the public sector (Article 10 of the amended Act of 16 April 1979 laying down the general status of State employees), which, by virtue of its general nature, allows to take into account the various forms that moral harassment at work may take.
The new Article L.246-2 of the Labour Code now states that "Any conduct which, by its repetition or systematisation undermines the dignity or psychological or physical integrity of a person constitutes moral harassment in the context of labour relations within the meaning of this chapter".
Although the Council of State wished to standardise the regimes of the public and private sectors by adopting the same definition, the Law does not provide for any coexistence nor possible articulation with the definition set forth in the 2009 Convention.
The new regime has a broader scope than the one provided by the 2009 Convention, as it concerns not only all persons under the company's control, but also its customers and/or service providers (Art. L.246-3 (1) of the Labour Code).
Moreover, it also covers any behavior, act or conduct that takes place outside normal working hours (e.g. during business trips, conferences etc.).
III. Employer’s obligation
The Law introduces the following employer’s obligations to strive against moral harassment at work :
immediately put an end to any moral harassment of which the employer is aware of and the measures taken may not be to the detriment of the victim (Art. L.246-3 (2) and (5) of the Labour Code).
put in place a set of measures to protect employees against moral harassment at work, after consultation with the staff delegation or, failing that, with all the staff. These measures consist, for example, in defining the resources available to victims, training and raising awareness among employees about moral harassment, and carrying out quick and impartial investigations in the event of moral harassment in the course of working relations when the employer is aware of it (Art. L.246-3 (3) of the Labour Code).
carry out an internal assessment of preventive measures and possibly implement new preventive measures if those already in place are proven ineffective (Art. L.246-3 (4) of the Labour Code).
However, the Law does not specify in what form such measures must be taken. Nevertheless, the employer is well advised to include the established measures in the company's internal regulations and policies.
IV. Employee's means of action
The Law provides for an employee or the staff delegation to refer the matter to the Inspection du Travail et des Mines ("ITM") if the acts persist despite the implementation of preventive measures, or in the event of the employer's failure to take such measures (Art. L.246-3 (6) of the Labour Code).
The ITM may hear the victim and other employees, as well as the employer or his representative. At the end of the investigation and the hearings, if any, the ITM draws up a report containing the necessary measures, recommendations and proposals for concrete measures to put an end to the offending conduct. Within 45 days of the referral, the ITM sends a full report to the employer with, if necessary, an express order to take the necessary measures to immediately stop the possible harassment within a certain period, which would be determined according to the elements of the case.
It is regrettable that the Law does not specify whether this procedure is confidential, and does not provide for the alleged harasser to be heard, or even the means of action available to him.
Also, an employee who has been the victim of moral harassment is now entilted to resign with immediate effect for serious reasons and to claim damages (Article L.246-6 of the Labour Code).
If the employer does not act or does not respect his obligations, (i) he may be civilly liable to the victim, (ii) a procedure before the ITM can be initiated and the employer who remains inactive risks an administrative fine of up to 25,000 EUR (Art. L.246-3 (6) of the Labour Code). Finally, (iii) the employer may also be subjected to a criminal sanction ranging from EUR 251 to EUR 2,500, depending on the seriousness of the offence (Art. L.246-7 of the Labour Code).
VI. Prohibition of reprisals against the employee
An employee may not be subjected to reprisals for protesting or refusing to accept a moral harassment behavior, or for having testified of facts relating to mobbing. Article L.246-4 (1) and (2) of the Labour Code establishes a protection against reprisals identical to that existing in the regime of sexual harassment. Such retaliatory measures are automatically null and void and the employee who is the victim may, in the event of termination of the employment contract, have the dismissal be declared null and void and request that he remains within the company, or be reinstated (Art. L.246-4(3) of the Labour Code).
It should also be noted that the Law does not provide for a reversal of the burden of proof in favour of the victims, so that it will nevertheless be up to the employee to establish the facts and prove the existence of moral harassment as, unlikely sexual harassment, it will not be presumed.
Consequently, an employee who considers to be a victim of moral harassment will have to prove three elements :
harassment as a fault of the employer, or proof that the employer was warned and did not react
the existence and extent of the damage suffered; and
the causal link between the employer's fault and the damage suffered.
Finally, it is important to underline that should the employee receive unemployment benefits, there is a risk that he will have to repay them if he is unable to prove the facts of moral harassment, the burden of proof of which lies entirely with the employee.
Our team specialised in Labour law is available in case you need advice and/or assistance.