Disclaimer: To provide employers with quick and practical information about how to comply with their obligations between now and the entry into force of the Law (as defined below), this newsflash has been prepared on the basis of Bill of law n°7864 as debated and voted on in Parliament on 9 March 2023. Readers should be aware that the final version of the Law has not been made official at the time of release of this publication and that the Law as published may contain additional subtleties to be taken into account later.
To fill an obvious legal vacuum in comparison with a number of EU Member States (including notably the three neighbouring countries), Bill of law n°7864, amending the Labour Code by introducing a mechanism for protection against moral harassment (bullying or mobbing) in the context of employment relations, was voted and approved by Parliament on 9 March 2023.
To date, the only Luxembourg legal instrument in the field of moral harassment was the 25 June 2009 convention on harassment and violence at work between the OGB-L and LCGB trade unions, on the one hand, and the UEL, on the other hand. This convention, which implemented the autonomous European framework agreement and was declared to be of general application by a Grand-Ducal regulation of 15 December 2009 (the "2009 Convention"), only made recommendations without – legally speaking – having any real binding force.
The Law, soon to be published in the Mémorial (Luxembourg Official Journal), which will introduce an obligation on employers to put in place a system for protection against moral harassment (the "Law"), intends to close this gap in the law by imposing numerous obligations on Luxembourg employers while preserving, in particular, the specific rights of staff representatives in this area.
1. A new definition of moral harassment in the context of labour relations
In addition to the definition in the 2009 Convention, thanks to the Law, employees, trainees, apprentices and pupils/students employed during vacations will be able to rely on a new definition of moral harassment incorporated into the Labour Code: "any conduct which, by its repetition or systematisation, undermines the dignity or psychological or physical integrity of a person". This new definition also applies to business trips, professional training, work-related communications and other circumstances outside normal working hours or place of work.
2. New obligations for employers
The Law places a series of obligations on an employer in relation to moral harassment (whether committed by an employee, a customer, a supplier or the employer themselves). These can be summarised as follows:
- Ensure that any act of moral harassment against its employees (of which the employer is aware) ceases immediately.
- Determine, after informing and consulting staff representatives (or, failing that, the staff directly), the measures to be taken to protect employees against moral harassment at work, in particular by:
- defining the options available to victims of bullying (e.g. reporting, help, support, care and return to work):
- conducting prompt and impartial investigations into acts of moral harassment,
- raising awareness among employees and managers about the definition of moral harassment, management of incidents and punishment of perpetrators,
- informing staff representatives (or, failing that, staff directly) of the applicable obligations; and
- informing and training employees.
- If an employer becomes aware of acts of moral harassment, carry out an internal assessment of the effectiveness of the preventive measures already in place and the possible implementation of further preventive measures or the revision of procedures, after consulting the staff delegation or, failing that, all employees.
The employee concerned (or the staff delegation with the employee's consent) may refer the matter to the Inspection du travail et des mines (Inspectorate of Labour and Mines) if the above measures against harassment are ineffective or non-existent, under penalty of a fine (EUR 251 to EUR 2,500, doubled for repeat infringements).
3. Specific protection for the employee victim and new legal remedies available
Any act of retaliation against an employee because of their complaint about or objection to bullying behaviour will be sanctioned by nullifying the act in question. Similarly, an employee cannot be subject to reprisals for testifying to facts relating to bullying.
An employee who is dismissed despite these protections will have two options:
- request the President of the Labour Court to declare the dismissal null and void and to order the employee's retention/reinstatement at the business (within 15 days) or
- file a legal claim for wrongful termination of the employment contract, with the possibility of obtaining specific damages for the harassment in addition to those relating to their dismissal.
The Law also provides that an employee who has been the victim of moral harassment may refuse to continue to perform their employment contract and resign on the grounds of serious misconduct by the employer with immediate effect.
In view of these changes, which represent a significant challenge for Luxembourg employers, and in order to tackle the pitfalls that will arise in the practical implementation of the Law, our Employment Law, Pensions & Benefits Team is setting up a series of specific training sessions and publications, in addition to providing individualised support to businesses that request it.