On 9 March 2023, Luxembourg’s Chamber of Deputies adopted the bill amending the Luxembourg Labour Code to introduce a system for protection against moral harassment at work (hereinafter the “Bill”) filed on 23 July 2021. The effective date has not yet been disclosed, but it should be imminent.
The Bill introduces a new Chapter VI entitled “Moral Harassment”, in Title IV “Equal Treatment of Men and Women and the Fight against Harassment in Labour Relations” of Book II “Regulations and Working Conditions” of the Luxembourg Labour Code.
What about the Impact on Employers?
The new article L. 246-2 of the Luxembourg Labour Code defines moral harassment as “any behaviour or act, as well as any conduct, that, through its repetition or systematisation, undermines a person’s dignity or psychological and physical integrity by creating an intimidating, hostile, degrading, humiliating or offensive environment, as well as repeated acts that have the purpose or effect of degrading working conditions in such a way as is likely to undermine the employee’s rights and dignity, alter his/her physical or mental health or compromise his/her professional future”.
This same article specifies that all communications – even those outside of normal working hours – are included and could constitute moral harassment.
Employers have now an obligation to immediately put an end to any moral harassment within their company of which they have become aware. Beforehand, they must determine, after informing and consulting the staff delegation – or failing that, all the staff – about what preventive measures are most appropriate to put in place, such as:
- A prompt and impartial investigation;
- Receiving, assisting and supporting victims;
- Raising employees’ awareness.
In the event of a report of acts of moral harassment within the company, the employer now has an obligation to conduct an internal assessment of the effectiveness of preventive measures.
In the event that moral harassment persists despite the measures taken by the employer to put an end to it, or in the event of inaction on the part of the employer, then the employee in question or the staff delegation, with the agreement of the employee who is the victim, may refer the matter to the Labour and Mines Inspectorate (“ITM” [Inspection du Travail et des Mines]).
Following an investigation conducted by the ITM, the ITM will draw up a report with recommendations and proposed measures that will be sent to the employer, requiring the latter to take the necessary measures within a given time period.
In the event that this injunction is not complied with, the ITM may impose an administrative fine on the employer of between EUR 25 and EUR 25,000, which may increase to EUR 50,000 in the event of a repeat offence within two years.
In addition, the Bill highlights that an employee who is a victim – or an employee who has witnessed acts of moral harassment – cannot be subject to retaliation and particularly cannot be dismissed. Any dismissal for this reason will be automatically null and void.
In the event that the above provisions are not complied with, the employer is also liable to a fine of between EUR 251 and EUR 2,500, and in the event of a repeat offence within two years, the fine may increase to EUR 5,000.
The Bill also highlights the essential role of the staff delegation, which must ensure that employees are protected from moral harassment and must assist and advise them, while maintaining the confidentiality of the facts presented by employees who are victims.
Finally, an employee who is a victim may terminate his/her employment contract with immediate effect for gross misconduct on the part of the employer and claim damages from the employer.