The Bill n° 7864 amending the Labor Code to implement a system for protection against moral harassment at work was introduced before the Chamber of Deputies on 23rd July 2021 (“the Bill”).
Until now, and contrary to sexual harassment, Luxembourg does not have a real legal framework in the field of moral harassment, excepting the Convention relating to harassment and violence at the workplace of June 25, 2009, (“Convention of 2009”) declared to be a general obligation between social partners, which provides for principles and recommendations but said Convention has no real binding force insofar as it does not provide any sanctions.
To overcome this, the Bill aims to introduce a specific legal provision in the Labor Code and implements news features.
I. Definition of moral harassment
The new article L. 246-2 of the Labor Code states that "Constitutes moral harassment in the context of work relations within the meaning of this chapter, any behavior or act, as well as any conduct which, by its repetition or systematization, undermines the dignity or the psychological and physical integrity of a person by creating an intimidating, hostile, degrading, humiliating or offensive environment, as well as repeated acts which have the purpose or effect of a degradation of the working conditions, likely to infringe on the rights and dignity of the employee, to alter his physical or mental health or to compromise his professional future”.
It should be noted that a less broader definition of moral harassment at the workplace is already provided for in the Convention of 2009. Moreover, these definitions are in addition to the criminal qualification of obsessive harassment.
In a recent opinion, the Council of State considered that this coexistence of several definitions runs counter to the principle of equality before the law foreseen in Article 10bis of the Constitution.
Therefore, the current definition may be subject to amendments.
The new regime has a broader scope than the one provided by the Convention of 2009, 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 Labor 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 Bill introduces the following employer obligations :
- The employer must put an end to any moral harassment of which he is aware (Art. L. 246-3 (2) of the Labor Code). If he fails to act, (i) he is civilly liable to the victim, (ii) the victim may resign with immediate effect, (iii) proceedings before the Inspection du Travail et des Mines (ITM) may be initiated and the employer who has remained inactive may be liable to an administrative fine, (iv) he commits a criminal offence and is liable to a criminal fine.
- The employer must put in place measures to protect employees against moral harassment, after consulting the staff delegation or, failing that, the entire staff (Art. L. 246-3 (3) of the Labour Code).
- In the event of moral harassment within the company, the employer must carry out an internal assessment of preventive measures and the possible implementation of new preventive measures if the measures already put in place prove ineffective (Art. L. 246-3 (4) of the Labor Code).
IV. Employee's means of action
If the moral harassment persists after the implementation of measures or if the employer fails to take adequate measures, the employee or the staff delegation may refer the matter to the ITM, with the prior agreement of the employee concerned (Art. L. 246-9 (6) of the Labor Code).
The ITM then hears the employee and possibly other employees, as well as the employer or his representative, within 45 days of receiving the file and draws up a report containing recommendations and proposed measures to put an end to the acts of moral harassment, as well as an injunction against the employer.
In the event of non-compliance with the ITM's injunction, the director of the ITM is entitled to impose an administrative fine on the employer of up to 25,000 euros (Art. L. 246-3 (6) and L. 614-13 of the Labor Code).
The employer may also be subject to a criminal penalty for non-compliance with certain obligations, which may range from 251 euros to 2,500 euros (Art. L. 246-7 of the Labor Code).
VI. Prohibition of retaliation against employee
Under no circumstances may an employee be subjected to reprisals for protesting or refusing to accept harassing behavior, or for testifying about harassment. Article L. 246-4 (1) and (2) of the Labor Code establishes a protection against retaliation identical to that existing in the area of sexual harassment.
Such measures of reprisals are null and void.
VII. Termination of employment contract and damages
Under the terms of Article L. 246-6 of the Labor Code, " An employee victim of moral harassment may terminate his or her employment contract without notice for serious reasons, with damages to be paid by the employer whose fault led to the immediate termination”.
It should be noted that the Bill does not provide for a reversal of the burden of proof in favor of the victims, so that it will be up to the employee to establish the facts and the proven existence of moral harassment. Unlike sexual harassment, the existence of any such harassment will not be presumed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.