While protection against sexual harassment has been included in the Labour Code for more than 20 years1, moral harassment has, until now, been largely absent from the provisions of this code.
Until 29 March 2023, protection against moral harassment at work was only governed by a convention dated 25 June 2009 on harassment and violence at work, concluded between the OGB-L and LCGB trade unions on the one hand, and the Union of Luxembourg Companies (Union des Entreprises Luxembourgeoises) on the other hand, which was made into a general obligation by a Grand-Ducal Regulation of 15 December of the same year2 (hereinafter the “Convention”).
However, as the legislator seemed to consider that the Convention was not sufficient to protect workers against moral harassment in the workplace (some even considering that moral harassment was the subject of a legal void in labour law), a law amending the Labour Code to introduce a mechanism of protection against moral harassment in employment relationships was voted for by the Chamber of Deputies on 9 March 2023 and came into force on 29 March 2023 (hereinafter the “Law“).
Protection against moral harassment is now provided for in Articles L.246-1 et seq. of the Labour Code.
The Convention, which is not repealed, will coexist with the Law, which it serves to supplement or clarify, provided of course that its stipulations are not inconsistent with the provisions of the Law.
In any case, it should be noted that the personal scope of the Law is identical to the personal scope of the Convention and sexual harassment3, and it applies to all employees4 trainees, apprentices, pupils and students5.
However, it includes several new features, more or less modelled on the rules for sexual harassment.
What are these new features?
1) The concept of moral harassment has been extended beyond a strictly professional context
Although the definition of moral harassment provided for by the Law (“any conduct which, by its repetition or systematisation, violates the dignity or physical or psychological integrity of a person“) does not introduce any particular innovation compared to the Convention6, the Law now extends the scope of application of the protection of employees to include acts of moral harassment carried out during “professional trips, professional training, communications in connection with or as a result of work by any means whatsoever and even outside normal working hours“7.
The Law therefore expressly provides that acts of moral harassment may also occur outside the employee’s usual place of work, but also that protection against such behaviour extends outside the workplace and/or working hours.
2) Protection against moral harassment is now extended to acts committed by customers or suppliers
As in the case of sexual harassment, the Law now extends protection against moral harassment to acts committed by an employer’s customers or suppliers.
3) Mandatory measures that are binding on the employer
Firstly, the Law provides the same obligations on the employer in relation to moral harassment as those already provided for by the Labour Code in relation to sexual harassment, namely that it must:
- refrain from any moral harassment;
- ensure that any moral harassment against its employees that it is aware of ceases immediately; and
- take measures to protect employees against moral harassment at work.
As regards the last point, the Law nevertheless innovates compared to sexual harassment as it expressly specifies 5 measures that the employer must implement as a minimum under this obligation. Employers must:
1. define the resources available to victims of moral harassment, in particular as regards the initial procedure, assistance and support, as well as the steps taken to accompany them and to enable them to return to work, and how to approach the staff delegation;
2. investigate the circumstances of moral harassment promptly (but without any specific time limit) and impartially;
3. educate employees and managers on the definition of moral harassment, methods of management and sanctions;
4. inform the staff delegation or, failing that, all employees, of the employer’s obligations and;
5. inform and train employees.
However, unlike the Convention, the Law is silent on the concrete implementation of these measures, particularly with regard to management of complaints of moral harassment. The Law merely states that the employer must “adapt them to the nature of the activities and the size of the company” and ensure that it can justify their implementation, particularly in the event of an inspection by the Luxembourg Inspectorate of Labour and Mines (“ITM”) (see below).
In this context, employers should therefore continue to refer to the provisions of the Convention, which remain in force and complement the Law.
4) The role of the staff delegation
As is already the case under the Convention, the staff delegation must be informed and/or consulted in the context of the implementation of protective measures, since the Law specifically provides for the following obligations on the employer to:
- inform the staff delegation of its obligations in preventing moral harassment;
- inform and consult the staff delegation on the protective measures to be put in place8;
- consult the staff delegation in case of evaluation and re-evaluation of procedures when a case of moral harassment has occurred9.
Similarly to protection against sexual harassment, the Law also stipulates that the staff delegation must “ensure the protection of employees against moral harassment“, while specifying that the staff delegation may assist and advise any employee who is the victim of moral harassment (as is already the case under the Convention), but also that the employee in question may be accompanied and assisted by a member of the staff delegation in the context of a moral harassment investigation carried out by the employer10.
Moreover, the Law also allows the staff delegation, with the agreement of the concerned employee, to refer the matter to the ITM if it deems it necessary (see below).
5) The implementation of a procedure before the itm
The most important innovation introduced by the Law, which did not exist either in the Convention or in relation to sexual harassment, is the possibility for the concerned employee or the staff delegation (with the agreement of the concerned employee) to refer the matter to the ITM in two scenarios:
- when moral harassment continues despite the implementation of measures by the employer; or
- when the employer fails to take adequate measures11.
Once the matter has been referred to the ITM, it will carry out its own investigation during which it will hear all the protagonists (the employee being the alleged victim, the alleged perpetrator and/or other witnesses, employees, etc.). If the ITM concludes that moral harassment exists at the end of its investigation, a report containing recommendations to put an end to the acts of moral harassment will be drawn up and sent to a director of the ITM, who will then send the employer, within 45 days of receiving the investigation file, a full report with orders to put an end to the acts of moral harassment within the time limit set by the director.
In the event of non-compliance with these orders, the employer is liable to an administrative fine of between 25 and 25,000 euros, which may be doubled in the event of repeated offences12.
6) Protection of the employee against retaliation
These provisions of the Law are new compared to the Convention, but they already exist in relation to sexual harassment, discrimination or whistleblowing in relation to corruption: an employee who is a victim or witness to acts of moral harassment must not be subject to retaliation for having rejected or protested against acts of moral harassment or for having testified to their existence13.
Any disciplinary measure taken by an employer on this basis, including the dismissal of the employee who is a victim or witness, will be and void. In this respect, the Law provides, as is already the case in the other matters mentioned above, for a specific procedure enabling the concerned employee to request, within 15 days of notification of the disciplinary measure taken against them (for example, in the case of dismissal, within 15 days of notification of the termination of their employment contract) by a simple request to the president of the Labour court for a ruling, as a matter of urgency, that the measure be declared and void and retention of the employee be ordered, or, where applicable, that the employee is reinstated.
As for the other matters mentioned above, the employee has an option: they can choose not to request the ity of the disciplinary measure in order to obtain retention/reinstatement, but instead to issue proceedings for unfair dismissal and claim damages.
It should be noted, however, that, as in the case of sexual harassment, discrimination or whistleblowing in the relation to corruption, the two aforementioned actions are mutually exclusive: the employee who has opted for ity of a measure cannot take action for unfair dismissal and vice versa.
7) The possibility for the employee to terminate the employment contract with immediate effect
As in the case of sexual harassment, but also in general in the case of serious misconduct by the employer, the Law allows an employee who has been the victim of moral harassment to terminate the employment contract with immediate effect for serious misconduct by the employer and to issue proceedings against the employer to claim damages. This is therefore not a specificity linked to moral (or sexual) harassment, but a classic application of the rules of labour law.
8) Criminal sanctions against the employer
Finally, the last innovation of the Law, which is specific to moral harassment, consists in providing for criminal sanctions against the employer.
If the latter commits acts of moral harassment, fails to take measures to put an immediate ceasing to acts of moral harassment of which it is aware, fails to determine the measures to be taken to protect employees against moral harassment at work, fails to carry out an internal assessment against moral harassment, or carries out acts of retaliation against the victim or witnesses of acts of moral harassment14, it may be sentenced to a fine of between 251 and 2,500 euros15.
It should be noted that there are no such criminal sanctions for sexual harassment.
1 Protection against sexual harassment in the workplace was introduced into the Labour Code by a law of 26 May 2000, which has since been amended by a law of 13 May 2008.
2 https://legilux.public.lu/eli/etat/leg/rgd/2009/12/15/n2/jo
3 Article L.245-1 of the Labour Code
4 According to Article L.121-1 of the Labour Code: those who carry out an activity as a trainer or athlete in execution of a contract concluded with an approved federation or an affiliated club are excluded from the scope of the Act when the activity in question is not carried out on a principal and regular basis and when its annual remuneration does not exceed 12 times the minimum social wage.
5 New article L.246-1 of the Labour Code
6 The convention of 25 June 2009 defines moral harassment as “repeated and deliberate wrongful acts which have the purpose or effect: to violate his/her rights or dignity; alter their working conditions or compromise their professional future by creating an intimidating, hostile, degrading, humiliating or offensive environment; to impair his/her physical or mental health.”
7 New article L.246-2 of the Labour Code
8 New article L.246-3 (3) of the Labour Code
9 New article L.246-3 (4) of the Labor Code
10 New article L.246-5 (2) of the Labor Code
11 New article L.246-3 (5) of the Labor Code
12 New article L.614-13 of the Labor Code
13 New article L.246-4 of the Labor Code
14 New article L.246-7 of the Labor Code
15 Can be doubled in the event of repeated offence within 2 years
