Newsletter - Moral harassment in employment relationships

The law amending the Labour Code in order to introduce a mechanism for protection against moral harassment in the context of labour relations (the "Law") was voted by the Chamber of Deputies in its public session of March 9, 2023 and was exempted from a second vote on March 14, 2023. The provisions of the Law are expected to come into force three days after its publication in the Mémorial of the Official Journal of the Grand Duchy of Luxembourg.

The Law establishes a specific legal instrument on moral harassment, in the field of labour law, largely modelled on the one existing with respect to sexual harassment. In this context, a new Chapter VI in Title IV of Book II of the Labour Code entitled "Chapter VI - Moral harassment" is introduced.

In doing so, the Law fills a legal gap that existed until now in Luxembourg, since the only mechanism relating to moral harassment was the Convention of June 25, 2009 on harassment and violence at work, signed between the OGB-L and LCGB trade unions, on the one hand, and the Union des Entreprises Luxembourgeoises (UEL), on the other hand, and declared of general obligation by the Grand-Ducal regulation of December 15, 2009.

The law applies to all employees as defined in article L.121-1 of the Labour Code as well as to trainees, apprentices, pupils and students employed during school vacations.

The present newsletter describes the key features of the Law.

A new definition of moral harassment

The new article L.246-2 of the Labour Code defines the notion of moral harassment as follows:

"any conduct which, by its repetition or systematisation, undermines the dignity or the psychological or physical integrity of a person”.

It should be noted that business trips, professional training, communications in connection with or as a result of the work by any means whatsoever and even outside normal working hours form an integral part of the performance of the work for the purpose of the above-mentioned definition.

The employer's obligations

The Law imposes certain obligations on employers to fight against harassment (whether it comes from an employee, a customer, a supplier, or themselves) as follows:

• The employer must refrain from any moral harassment during the work relationship.
• The employer must determine, after informing and consulting with the staff delegation (or, failing that, the entire staff), the measures to be taken to protect employees against harassment at work. These measures must be adapted to the nature of the activities and the size of the company and must cover at least a certain number of points described in the Law.
• When moral harassment is reported, the employer must take measures to ensure that the situation immediately ceases and then proceed, always after consultation with the staff delegation (or, failing that, with the entire staff) to an internal evaluation of the effectiveness of the preventive measures already in place and the possible implementation of new preventive measures.

Referral to the labor inspectorate

The Labour Inspectorate (ITM) may be contacted by the employee concerned by the acts of moral harassment or by the staff delegation - with the employee’s agreement - if the moral harassment situation persists after the implementation of the above-mentioned measures or if the employer fails to take adequate measures.

The ITM will be in charge of investigating the case and conducting hearings (with the alleged victim of the harassment as well as the alleged perpetrator and any other person it deems useful to hear, including the employer). It will then draw up a report and, if necessary, will order the employer to immediately stop the acts of moral harassment. This report will be sent to the employer no later than forty-five days after receipt of the case.

In the event of moral harassment, the director of the ITM will order the employer to immediately stop the acts of moral harassment within a certain period. If the injunction is not complied with, the director of ITM will be entitled to impose an administrative fine of up to EUR 25,000 on the employer.

Protection of the employee

The employee concerned by acts of moral harassment benefits from a certain protection since the measures that the employer must take to stop the moral harassment situation cannot be taken to his/her detriment.

Moreover, the employee may not be subject to reprisals because of his/her complaint or objection to mobbing behaviour by the employer (or any other superior, co-workers or external persons in contact with the employer) nor for having testified to facts relating to moral harassment.

The increased role of the staff delegation

The staff delegation is called upon to play an important role in matters of moral harassment. Thus, the staff delegation is:

• responsible for ensuring the protection of employees against moral harassment in the course of their work relations and, in this respect, may propose to the employer any preventive action it deems necessary,
• empowered to assist and advise the employee who is victim of moral harassment, particularly in the context of the investigation.

In exercising its prerogatives, the staff delegation is required to respect the confidentiality of the facts of which it has been informed, unless the employee concerned waives this requirement.

Criminal penalties

In the event of non-compliance with the provisions of the Law, penalties may be imposed on employers, employees, customers, or suppliers of the company ranging from EUR 251 to EUR 2.500.

Please contact the members of our Employment team should you need any assistance.