The Law of 29 March 2023 introduced protection against psychological harassment in employment relationships into the Labour Code.
Until then, the only provision covering psychological harassment was the agreement of 25 June 2009 on harassment and violence at work signed by the OGB-L and LCGB trade unions and the Union des entreprises luxembourgeoises (UEL).
The protection introduced is largely modelled on that for sexual harassment, with the exception of a special procedure for intervention by the Inspectorate of Labour and Mines (ITM), which does not exist for sexual harassment, and the principle of reversal of the burden of proof applicable to discrimination on the grounds of sex and therefore to sexual harassment, which unfortunately has not been adopted in favour of the victim of psychological harassment. It is therefore up to the employee who is the victim of psychological harassment to prove a series of acts of which he or she was the victim and to convince the court that these were not justified by the needs of the company but constituted unjustified attacks on his or her person.
The definition of psychological harassment initially proposed has been replaced by that in force in the public sector, which, by its general nature, makes it possible to take into account the different forms that psychological harassment in the workplace can take.
The staff delegation is given an important role in preventing and combating harassment.
Finally, both administrative and penal sanctions are provided for.The collective agreement on psychological harassment and violence in the workplace remains applicable and coexists with the legal provisions on psychological harassment in employment relations. However, any stipulation in a collective agreement that is contrary to laws and regulations is null and void unless it is more favourable to employees.
The provisions of the collective agreement relating to psychological harassment and violence in the workplace that are more favourable to employees therefore prevail over the legal provisions.
Psychological harassment, sometimes referred to as mobbing, is a phenomenon that is difficult to understand and therefore also difficult to define.
The 2009 Convention uses the following definition:
Psychological harassment occurs when a person under the authority of the company commits repeated and deliberate wrongful acts against a worker or manager with the purpose or effect of:
violating his or her rights or dignity
altering their working conditions or compromise their professional future by creating an intimidating, hostile, degrading, humiliating or offensive environment
altering his or her physical or mental health
This definition is rather restrictive in that it excludes acts of harassment committed by third parties (e.g. customers or employees of other companies), amongst other. Case law has sometimes used other definitions.
Whatever definitions are given, they all remain vague and involve subjective notions, such as dignity or humiliation, which the parties or judges have to assess on a case-by-case basis.
However, two points permit a common thread in all the definitions:
there must be a plurality of repeated acts, as an isolated act cannot in itself constitute harassment. In practice, it is often a question of acts of a certain banality, which are not necessarily illegal, but which as a whole become wrongful
there must be an attack on the integrity or dignity of the employee. The treatment of the employee must therefore go beyond the normal sacrifices that any employee must accept in his or her professional environment and must not be justified by the needs of the organisation and the functioning of the company.
The definition of moral harassment introduced into the Labour Code by the Act of 29 March 2023 is the one in force in the public sector, which, by virtue of its general nature, makes it possible to take account of the various forms that moral harassment in the workplace can take:
“Psychological harassment in the context of employment relations within the meaning of this chapter is any conduct which, by its repetition or systematic nature, undermines the dignity or psychological or physical integrity of a person.
Within the meaning of paragraph 1, business trips, professional training, communications in connection with or as a result of work by any means whatsoever and even outside normal working hours, are an integral part of the performance of work.”
In the event of an allegation, it is up to an employee who claims to be a victim of psychological harassment to prove it. If they fail to do so, their claims will be dismissed. Unlike sexual or discriminatory harassment, Luxembourg law does not provide for any reversal or lightening of the burden of proof for victims of psychological harassment.
In specific terms, an employee must establish a number of facts of which he or she was the victim and convince the court that these were not justified by the needs of the company, but constituted unjustified attacks on his or her person. The employee must prove or offer to prove specific and targeted facts, and cannot be satisfied with vague and general formulas. Such evidence can be adduced by any means, but in practice witness testimony will play a key role.
It is often advisable for employees to keep a detailed report of the incidents they experience, their context and possible witnesses. This report does not constitute evidence in itself, as the employees have drawn it up themselves, but it will facilitate their task in a possible court case, as it provides a framework for administering the evidence.
(last updated on 05.07.2023)
What are the employer's obligations?
Employers shall determine the measures to be taken to protect employees against psychological harassment in the course of their work, after informing and consulting their staff delegations or, where none exists, the entire staff. These measures should be determined by the employer, by setting up an anti-harassment charter or including an anti-harassment section in companies’ internal regulations.
These measures, which must be adapted to the nature of the activities and the size of the company, cover the following as a minimum:
1° specifying resources available to victims of mobbing, in particular services, help and support required for victims, measures for their care and return to work as well as how to address the staff delegation;
2° a rapid and impartial investigation of acts of psychological harassment in the labour relations environment;
3° raising the awareness of employees and managers on the definition of mobbing, its management within the company and the sanctions against the perpetrators of psychological harassment;
4° informing the staff delegation or, where none exists, all company staff of the employer’s obligations to prevent psychological harassment as part of relations between people at work;
5° informing and training of employees.
Under no circumstances may these measures be taken to the detriment of a victim of psychological harassment.
What can an employee do if he considers himself to be a victim of psychological harassment?
When employers become aware of mobbing behaviour at work, they shall take measures to put an immediate stop to the acts of psychological harassment and shall carry out an internal assessment of the effectiveness of existing preventive measures, as well implementing any new preventive measures, particularly in relation to the organisation of the company, a review of the procedures applied in the event of mobbing and informing employees.
This evaluation and subsequent re-evaluations shall be carried out after consultation with the staff delegation or with the entire staff, if no delegation exists.
What can be done if the harassment persists or if the employer does nothing?
If psychological harassment at work persists or if an employer fails to take appropriate measures, employees who feel that they are victims, or the staff delegation – with the agreement of the employee concerned – may refer the matter to the Inspectorate of Labour and Mines (Inspection du travail et des mines – ITM).
The ITM interviews the employee and the alleged perpetrator of the mobbing, as well as any other employees and the employer or his representative.
Following the investigation of the case and the interview, the ITM prepares a report that includes any necessary recommendations and proposals for measures to put an end to acts of psychological harassment.
No later than 45 days following receipt of a file, the director of ITM or his representative forwards the complete report to the employer concerned. Where acts of psychological harassment exist, ITM enjoins the employer to take all necessary measures to put an immediate end to such acts of harassment within a period of time set in accordance with to the elements presented in the report.
If the injunction is not complied with within the time limit, ITM may assess an administrative fine against an employer.
Employees shall not be subjected to reprisals because of their protest or refusal to accept mobbing behaviour by the employer or any other superior, work colleagues or persons extraneous to the company in contact with the employer.
Similarly, an employee may not be subjected to reprisals for having testified to facts relating to psychological harassment.
Any stipulation or act to the contrary, particularly any dismissal in breach of these provisions, shall be null and void.
Should an employment contract be terminated, employees may submit a simple petition to the Chief Magistrate of the Labour court within 15 days of notification of the termination, who shall make an urgent ruling with the parties heard or duly summoned, to rule that the dismissal is null and void and to order that the employment contract be maintained, or, where applicable, that it be reinstated.
The order of the Chief Magistrate of the Labour court is provisionally enforceable; within 40 days of notification through the registry it may be appealed by simple petition to the magistrate presiding over the chamber of the Court of Appeal to which appeals in labour law matters are assigned.
An employee who is a victim of psychological harassment may refuse to continue to work under the employment contract and terminate it without notice for a serious breach, with damages to be paid by the employer whose fault caused the immediate termination.
In cases of resignation justified by an act of harassment, jobseekers may petition the Chief Magistrate of the competent Labour court to authorise a provisional award of full unemployment benefits pending the final judicial decision on the legality or merits of their resignation. The Chief Magistrate of the Labour court issues an appealable order within 40 days of its notification to the Chief Magistrate of the Court of Appeal. You must be registered with the authorities as a jobseeker and have previously brought the dispute concerning your resignation before the competent labour court. The Chief Magistrate of the Labour court shall determine the period for which the provisional award of unemployment benefit is authorised, up to a maximum of 182 calendar days. Unemployed persons may request an extension of these provisional unemployment benefits, but the total duration of such an authorisation may not exceed 365 calendar days. A judgment or ruling declaring this type of resignation justified on the grounds of harassment orders an employer to reimburse the unemployment benefits paid by the Employment Fund to the employee for the period or periods during which the employer is obliged to pay wages or benefits pursuant to the judgment or ruling. The amount of unemployment benefit that an employer shall be ordered to repay to the Employment Fund is deducted from the wages or compensation that the employer is ordered to pay to the employee pursuant to the judgment or ruling.
CAUTION: A judgment or ruling declaring an employee’s resignation motivated by an act of harassment to be unjustified condemns this employee to reimburse all or part of the unemployment benefits paid to him or her to the Employment Fund, if necessary, in instalments.
Employees may request a partial remission or deferment of the repayment of benefits to the State. However, such a repayment facility must be expressly requested by the employee and Judges cannot substitute themselves for employees in deciding ex officio on a reduction of the amount to be repaid.
In cases where a suit brought by an employee on the grounds of resignation due to psychological harassment is dropped due to withdrawal, employees shall reimburse any unemployment benefits paid to them to the Employment Fund. If suit is withdrawn following a settlement between the employee and the employer, half of the unemployment benefit shall be repaid by the employee and half by the employer.
In companies with at least 15 employees, the staff delegation, is responsible for ensuring that employees are protected against psychological harassment in the course of their work relations. To this end, it may recommend any preventive action it deems necessary to the employer. The staff delegation is entitled to assist and advise an employee who has suffered from psychological harassment. It is obliged to observe strict confidentiality of the facts of which it has knowledge in this respect, unless the employee concerned waives this obligation. Employees who have suffered from psychological harassment have the right to be accompanied and assisted by a member of the staff delegate at interviews held with the employer or the employer’s representative as part of the investigation into psychological harassment, or, failing that, by a person of their choice from among the members of staff.
Should legal action for compensation for unfair termination of the employment contract be launched, and should the court before which the case is brought find that the termination of the contract is deemed abusive, it shall order an employer to pay employee damages not only in respect of the damage suffered by them as a result of a dismissal but also, where applicable, the damage suffered as a result of the psychological harassment that terminated persons suffered during the employment relationship.
If the victim has resigned with immediate effect because of the employer’s fault, he or she can claim compensation for material damage in addition to the moral damage, because he or she has had to leave the job and has thus found himself or herself without income or with a reduced income.
In addition to civil proceedings, criminal proceedings may be considered in particularly serious cases of harassment. Since 2009, article 442-2 of the Penal Code incriminates as obsessive harassment the fact of repeatedly harassing a person when the perpetrator knew or should have known that this behavior would seriously affect the tranquillity of the person concerned. If the employee believes that he or she is a victim of this offence, he or she may file a complaint with the police or otherwise initiate criminal proceedings. This action will be directed against the natural person who was the perpetrator of the harassment.
A fine ranging between 251 and 2,500 euros is imposed on:
1° any employer, employee, customer or supplier of the company who commits acts of psychological harassment in breach of the prohibition referred to in Article L. 246-3, paragraph 1;
2° an employer who fails to take measures to put an immediate end to acts of psychological harassment in breach of Article L. 246-3, paragraph 2;
3° an employer who fails to determine the measures to be taken to protect employees against psychological harassment at work in breach of Article L. 246-3, paragraph 3; or
4° an employer who fails to carry out an internal assessment in breach of Article L. 246-3, paragraph 4;
5° the employer, the hierarchical superior, the work colleague or any outside person in a relationship with the employer, in particular the company’s customer and supplier, who fails to comply with the prohibitions referred to in Article L. 246-4, paragraphs 1 and 2.
In the event of a repeat offence within two years, these penalties may be increased to twice the maximum.
The rules for the public and private sectors are similar in some respects.
For public employees, their respective statutes set out protective rules.
In the private sector, at the instigation of the European Communities, Luxembourg adopted a legal framework in 2000 targeting sexual harassment in the workplace.
It is legally interesting to note that the law explicitly equates any sexual harassment with discrimination on the basis of sex. Therefore, in addition to the rules on harassment, the victim can also invoke the provisions on discrimination.
The Labour Code, as well as the statutes for state and municipal civil servants, define sexual harassment as follows:
Sexual harassment in the context of employment relationships is any conduct with a sexual connotation or any other conduct based on sex which the perpetrator knows or ought to know affects the dignity of a person, when one of the following conditions is met:
the behaviour is unwanted, untimely, abusive and hurtful to the person who is subjected to it;
the fact that a person refuses or accepts such behaviour on the part of an employer, employee, customer or supplier is used explicitly or implicitly as the basis for a decision affecting that person’s rights in relation to vocational training, employment, job retention, promotion, salary or any other employment-related decision;
such behaviour creates an intimidating, hostile, degrading, humiliating or offensive environment for the person subjected to it.
Harassment can be physical, verbal or non-verbal. The intentional element of the behaviour is presumed, and therefore does not need to be specifically proven by the victim.
This definition uses many vague notions, such as dignity or hurtfulness, which in the event of a dispute will have to be assessed subjectively by the court.
Unlike moral harassment, sexual harassment does not require a plurality of acts. A single incident, if serious enough, can be analysed as sexual harassment.
Less serious incidents, on the other hand, usually only become harassing through repetition.
The question arises as to whether an objective approach should be adopted and based on the attitude of an average employee or whether the specific sensitivities of each victim should be taken into account.
Case law and the Luxembourg legislator seem to favour a subjective approach, with each individual being free to determine what behaviour they want to accept and what conduct they consider inappropriate.
However, this approach may lead to abuses, where employees claim to be a victim who have to be taken at their word when they claim to have been shocked and injured. To a certain extent, an objective approach is still necessary.
However, if the harasser knew about these particular sensitivities and knowingly targets them with his or her behaviour, sexual harassment is cited.
In addition to co-workers, sexual harassment can also be perpetrated by people outside the company, such as customers, suppliers or employees of other companies working at the same workplace. In this case, employers also assume responsibility for the integrity of the employee who is the victim of harassment, but their means of action against the harasser will be more limited
How to prove sexual harassment?
In contrast to psychological harassment, sexual harassment is generally easier to prove, as the evidence relates to concrete incidents, the inappropriateness of which is usually intrinsic and does not have to be inferred from a general context.
Victims of sexual harassment have a reduced burden of proof because they are assimilated to victims of discrimination. The Code establishes a shared burden of proof and obliges victims first to establish facts that give rise to a presumption of sexual harassment; it is then up to the other party (usually the employer) to establish the contrary. However, a victim cannot be satisfied with mere assertions, however consistent and plausible, but must provide specific evidence. This evidence can be provided by any means, but in practice witness testimony will play a key role. However, acts of sexual harassment are often committed out of sight, so that the victim will not be able to rely on any eyewitnesses.
How are employees protected against sexual harassment?
Sexual harassment is obviously prohibited. This prohibition not only applies to employers (head of the company/line manager), but also to any employee, customer or supplier of the company.
The statutes of municipal and state civil servants explicitly state that civil servants must refrain from any sexual harassment in the course of their work relations.
In addition, the law protects against all forms of retaliation and punishment those who protest or refuse to accept acts or behaviour of sexual harassment, as well as those who have testified in this context. If the employer were to dismiss an employee in the private sector as a reprisal, the employee may within 15 days apply to the President of the labour court to have the termination of his or her employment contract declared null and void and to obtain that he or she be kept or reinstated in the company. In the public sector, it is specified that a civil servant may not be subject to reprisals either because of protests or refusals to act or behave in a manner contrary to the principle of equal treatment, or in response to a complaint or legal action aimed at ensuring respect for the principle of equal treatment.
What is the employer's responsibility?
Prevention and awareness-raising
The law obliges employers to take all necessary preventive measures to ensure the protection of the dignity of every person in the course of employment relations. The Labour Code specifies that the measures to be taken by employers must include information measures. For the rest, an employer is free to choose what means to use, which may include training.
As part of the preventive measures, the Equal Opportunities Officer, or where appropriate the staff delegation, is also called upon to intervene to ensure the protection of employees against sexual harassment; these persons may propose to the employer any preventive action consider necessary.
Employers must send two key messages to staff: that victims are told that the employer takes harassment seriously and that they can go to their line manager in confidence, and that all employees are told that the employer will not hesitate to take action against harassers.
Management and investigation of complaints
The law does not specify how complaints should be handled and does not require a specific procedure to be put in place. However, as the employer is responsible for the employees who are victims of harassment, he is obliged to listen to them. The head of the company may take on this task himself or delegate a person to deal with complaints of sexual harassment. If the victim approaches one of his or her superiors, this person must assume responsibility for the problem or at least forward the complaint to another competent person.
In general, an employer who receives a complaint must first investigate it and may neither reject it nor accept it automatically. The employer should gather the information necessary to form an opinion and hear both the victim and the accused person in a neutral and impartial manner. The employer shall also ensure that the necessary discretion is maintained during the procedure so that it does not harm either the employee who has declared himself or herself to be a victim or the employee who has been denounced. In matters of sexual integrity violations, the damage caused by an unjustified accusation can be disastrous.
Sanctioning the harasser and protecting the victim
The Labour Code obliges employers to ensure that any sexual harassment of which they are aware ceases immediately. It has been stated above that victims of sexual harassment must not be subjected to reprisals for this. Therefore, measures taken by employers may only exceptionally affect the victim, must not take the form of a sanction and in principle require the victim’s consent. According to the law, it is therefore not the victim who must be removed from the offender, but the offender who must be removed from the victim.
The law does not specify what sanctions the employer may take against the perpetrators of sexual harassment. The ordinary rules of disciplinary law will apply, and the employer will have to choose a sanction appropriate to the seriousness of the facts. One of the main purposes of the sanction is to deter the perpetrator from repeating the offence, whether to the detriment of the former victim or of a new victim. In less serious cases, an employer may therefore be satisfied with sanctions such as an interview, a warning or a reassignment aimed at keeping the perpetrator away from the victim. Often, however, cases of sexual harassment are so serious that they leave open the possibility for the employer to dismiss the employee, either by dismissal with notice or by dismissal with immediate effect.
All these measures taken by the employer, be it a change in working conditions or a termination of an employment contract, must be carried out in compliance with the procedures and formalities imposed by the Labour Code. The employer must also bear in mind that the harasser may contest the sanction imposed on him/her and that the employer will therefore have to establish the facts of harassment. The victim will play a key role in proving this.
What can a victim do?
Seek advice
Employees who are victims of sexual harassment may first seek advice, so that an external and neutral view can be taken of their situation and that they cans see what possible action can be taken.
In particular, victims can contact the following people:
his or her line manager or human resources manager;
the person who may have been appointed within the company/administration to deal with harassment issues;
the staff representatives, in particular the staff delegates, who may act as assistants or intermediaries in discussions with the employer. The law clearly states that the delegates, and in particular the Equal Opportunities Officer, are called upon to advise the employee and may accompany and assist him or her in all interviews with the employer that take place as part of the sexual harassment investigation;
the occupational physician, who has access to the company and can give advice to the employer on how to adapt workstations;
the Inspectorate of Labour and Mines, which is explicitly responsible for enforcing sexual harassment provisions in the private sector;
a trade union or a lawyer who will carry out a legal analysis of the problem;
The Centre for Equal Treatment can also be contacted, as sexual harassment is legally considered to be discrimination on the basis of sex.
Leaving the company or staying in the company
In the private sector, if the manager or head of the company, i.e. the person at the top of the hierarchy, is himself the perpetrator of the harassment, the victim has few means of taking action internally and will often have no choice but to leave the company. If a colleague, a supervisor or a third party is the perpetrator of the harassing acts, everything will depend on the employer’s reaction to the victim’s complaint. If the employer intervenes to help the victim and punish the perpetrator, there is nothing to prevent the work relationship from continuing. If the employer decides not to intervene, it will be difficult for the victim to continue working in the company. It is often illusory to want to file a lawsuit against one’s employer while maintaining the work relationship. It is also important to know that the victim has no way of forcing the employer to take action against the harasser.
If the victim decides to leave the company, she can do so by mutual agreement with the employer or by resigning. In the first case, the victim will not be considered as involuntarily unemployed and will not be able to receive unemployment benefits. In the second case, she can apply to the President of the Labor Court and request that the unemployment benefits be awarded to her in advance. The judge will proceed with a summary analysis of the file and if he or she considers that the resignation appears to be in order, he or she will order the provisional admission of the employee to unemployment benefits. By making this request, the employee undertakes to take legal action against his employer to have a decision made on the merits of the sexual harassment of which he was a victim. The employee should be aware that if he or she loses this lawsuit, he or she will be required to repay all or part of the unemployment benefits received.
What are the possible sanctions?
Damages
The victim, whether working in the public or private sector, can sue for compensation for the damage he or she has suffered as a result of being sexually harassed. The damages suffered by the victim will be mainly of an emotional nature. Such a lawsuit can be long and drawn out, and the outcome is uncertain.
Legal action may be taken against the direct perpetrator of the harassment or against the employer.
When it is directed against the employer, not in his capacity as perpetrator, but in his capacity as hierarchical superior, the reproach will be aimed at the employer’s wrongful inaction in the face of the victim’s distress; this presupposes that the employer was aware of the harassment, and therefore that victim complained to his or her superiors.
If the victim has resigned with immediate effect because of the employer’s fault, he or she may, in addition to his or her non-material damage, claim compensation for the material damage caused by having to leave his or her job and thus finding himself or herself bereft of income or with reduced income.
The criminal complaint
In addition to addressing the issue on a civil basis, criminal charges may be considered. The Criminal Code protects the sexual integrity of individuals through a number of offences, so that acts that constitute sexual harassment in civil law often also constitute a criminal offence. The following offences in particular come into play:
rape, broadly defined as any act of sexual penetration of any kind and by any means;
indecent assault, which covers any physical action contrary to the common sense of decency, undertaken on another person, such as forcing someone to undress or touching them in inappropriate places;
indecent assault, which includes all actions that offend decency, for example sending pornographic e-mails.
If such an offence is established, the victim may decide to press criminal charges, in particular by filing a complaint with the police. The advantage of this approach is that the police will be involved in the investigation and will have more means of establishing the truth than if victims were left to prove the sexual harassment by themselves.
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