Your Subscription

We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.





Login
Twitter LinkedIn




Login
  • Home
  • About
  • Updates
  • Awards
  • Contact
  • Directory
  • OnDemand
  • Partners
  • Testimonials
Forward Share Print
Castegnaro

Moral harassment in the workplace: what is Luxembourg's stance?

Newsletters

11 December 2019

Employment & Immigration Luxembourg

National legal framework
Workplace bullying
Employers' obligations in matters of moral harassment
Employers' obligation to create prevention policies
Employers' obligations following psychological harassment complaints
Employers' obligations in cases of proven harassment
Employers' responsibilities
Comment


On 21 June 2019 the International Labour Conference adopted Convention 190 on Violence and Harassment at Work. Convention 190 reminds member states of their responsibility to promote a general environment of zero tolerance. Its preamble states that "violence and harassment in the world of work can constitute a human rights violation or abuse... [threaten] equal opportunities [and] is unacceptable and incompatible with decent work".(1)

National legal framework

In Luxembourg, harassment in the workplace is governed by:

  • the Labour Code – namely, Articles L241-1 (harassment based on gender), L245-2 (sexual harassment) and L251-1 (discriminatory harassment); and
  • the 25 June 2009 Agreement on Harassment and Violence at Work, which was declared a general obligation by the Grand Ducal Regulation of 15 December 2009 on Psychological Harassment and Violence in the Workplace.

Workplace bullying

Unlike sexual harassment, moral harassment in the private sector is not governed by a specific law in Luxembourg,(2) and the legislature seems to have been reluctant to legislate on moral harassment.(3)

Therefore, the Agreement on Harassment and Violence at Work constitutes the legal framework for employers with regard to ​​psychological harassment. According to Article 2 of the agreement:

Moral harassment occurs when a person who is dependent upon the enterprise commits unauthorised, repeated and deliberate actions towards a worker or a manager, with the aim or effect of:

  • either infringing their rights or their dignity;
  • or damaging their working conditions or jeopardizing their professional career by creating an intimidating, hostile, degrading, humiliating or offensive environment;
  • or else causing damage to their physical or mental health.

According to case law, 'moral harassment' in the workplace is defined as repeated misconduct of a vexatious, humiliating or detrimental character that affects the victim's performance at work.(4) Thus, an isolated act – even if someone is at fault – is insufficient to constitute moral harassment.(5)

Moreover, in light of the definition set out by the Agreement on Harassment and Violence at Work, moral harassment can be horizontal (between a colleague of the same hierarchical level) or vertical (by a supervisor or employer). Regardless of the horizontal or vertical nature of the harassment, the framework applicable to the employer is the same.

Employees who feel that they have been the victim of moral harassment must establish the existence of precise and concordant facts which, taken as a whole, make it possible to presume the existence of moral harassment.(6) The facts must be objectively verifiable and precise as to the acts of harassment and the reality of the persons denounced so as to allow the employer to react and verify the claims.(7)

Employers' obligations in matters of moral harassment

In accordance with Article 1134 of the Civil Code,(8) employers must perform employment contracts in good faith. This commitment to ensuring normal working conditions for their employees obliges employers – as the sole holder of a company's management and organisation powers – to take all measures necessary to prevent or stop all forms of harassment,(9) failing which the employer's responsibility could be engaged.

Employers' obligation to create prevention policies

As part of a prevention policy, employers must – in consultation with staff representatives – take measures to protect workers and managers from moral harassment. These measures must be adapted in consideration of the nature of the activities and size of the company.

In addition, the Agreement on Harassment and Violence at Work requires employers to implement – in consultation with staff representatives(10) – a written procedure for handling harassment problems based on an internal evaluation and the subsequent reassessment of harassment within the company.(11) This procedure may be set at either the company or sector level and must be based on the following considerations:

  • The parties will act with all necessary discretion to protect the dignity and privacy of each person involved.
  • Complaints will be reviewed without delay and processed within a reasonable time.
  • Each complaint will be treated impartially.
  • Each complaint must be supported by detailed information.

Employers' obligations following psychological harassment complaints

Pursuant to case law(12) and the Agreement on Harassment and Violence at Work, once employers are validly informed of possible acts of harassment – but before they take measures against the alleged harasser – they must:

  • speak to the victim;
  • conduct an internal investigation; and
  • gather all of the information necessary to end the conflict and protect the victim.

Employers' obligations in cases of proven harassment

If a situation is proven to be harassment, the employer must take appropriate measures against the harasser, including disciplinary penalties and dismissal. Measures to end harassment cannot be harmful to the victim.

Employers' responsibilities

Even if employers themselves are not the source of harassment, their responsibility as a business owner may be engaged. In addition, employers may be held liable if they do not act following a harassment complaint.

Therefore, in the event of litigation, employees who claim moral harassment bear the burden of proof.(13) In order to obtain damages, employees must provide evidence of:

  • the non-performance of the contract of employment in good faith;
  • a prejudice; and
  • a causal link between the employer's fault and prejudice suffered by the employee, where applicable.

In addition, the Court of Appeal set out the condition of "prior knowledge of the facts by the employer"(14) of moral harassment as a condition sine qua non of the action for liability of an employee against the employer.(15)

Comment

The legal means available to employees who are victims of moral harassment are less protective than in the case of discriminatory(16) or sexual harassment. In the latter situation, it is sufficient for the person who believes that they are a victim of discriminatory or sexual harassment to establish facts that make it possible to presume the existence of direct or indirect discrimination. The defendant must then prove that there has been no breach of the equal treatment principle.(17)

For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be accessed at www.castegnaro.lu.

Endnotes

(1) Preamble to Convention 190 on Violence and Harassment at Work, adopted by the International Labour Conference on 21 June 2019.

(2) The legislation applicable to national and municipal officials defines 'moral harassment' (Law of 19 May 2003 (Mémorial A 78)).

(3) Bill 5241 amending the amended Law of 17 June 1994 concerning the Safety and Health of Workers at Work, tabled on 18 November 2003 and withdrawn on 11 October 2006 or draft Law 4979 on the Protection Against Moral Harassment in Labour Relations, filed on 4 July 2002 and resumed on 27 March 2014.

(4) Court of Appeal, 7 May 2015, 38957.

(5) Court of Appeal, 21 November 2013, 38242 and 17 September 2009, 33735.

(6) Court of Appeal, 17 May 2018, 43317.

(7) Court of Appeal, 6 November 2014, 39839.

(8) In the absence of special provisions, the Luxembourg courts rely on Article 1134 of the Civil Code, according to which "legally concluded agreements are the law of those who made them must be performed in good faith".

(9) Court of Appeal, 13 February 2014, 37938.

(10) In accordance with Article L414-3 of the Labour Code, a company's staff delegation has the right to participate in the implementation of a policy to prevent harassment and violence in the workplace.

(11) The implementation of this procedure depends on the size of the company, among other things.

(12) Court of Appeal, 19 April 2018, 44623.

(13) Court of Cassation, 5 March 2015, 3431 and Court of Appeal, 26 April 2018, 44560.

(14) More specifically, a company may have knowledge of the facts from the information given to its managers who can stop or prevent harassment or to persons – such as the head of HR – who have the authority to gather this information.

(15) Court of Appeal, 28 April 2016, 41470 and 13 February 2014, 37938.

(16) The types of discriminatory harassment prohibited by Luxembourg law are harassment based on:

  • gender;
  • age;
  • religion or belief;
  • disability;
  • sexual orientation; and
  • an association or non-association, true or supposed, with a nationality, race or ethnicity.

(17) Article L253-2 of the Labour Code.

The materials contained on this website are for general information purposes only and are subject to the disclaimer.

ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.

Forward Share Print

Authors

Guy Castegnaro

Guy Castegnaro

Ariane Claverie

Ariane Claverie

Register now for your free newsletter

View recent newsletter

Today's articles

  • Recent amendments to employment law - Malta
  • Skilled Worker visa provides new options for foreign workers - United Kingdom
  • Making Remote Work – the government's National Remote Work Strategy - Ireland
  • Counting the cost – Court of Appeal rules that budget considerations can justify indirect discrimination - United Kingdom
  • Hello 2021, goodbye COVID-19? Navigating employment risks in a post-2020 world - United Arab Emirates

More articles

More from this firm

  • COVID-19: temporary exemption from maximum working hours
  • COVID-19: leave for family reasons when child must self-isolate or quarantine
  • COVID-19: bill establishing a single bonus for promoting apprenticeships
  • Employers' obligations during high temperatures and heat waves
  • COVID-19: new post-crisis employment law provisions

More articles

  • Home
  • About
  • Updates
  • Awards
  • Contact
  • My account
  • Directory
  • OnDemand
  • Partners
  • Testimonials
  • Follow on Twitter
  • Follow on LinkedIn
  • Disclaimer
  • Privacy policy
  • GDPR Compliance
  • Terms
  • Cookie policy
Online Media Partners
Inter-Pacific Bar Association (IPBA) International Bar Association (IBA) European Company Lawyers Association (ECLA) Association of Corporate Counsel (ACC) American Bar Association Section of International Law (ABA)

© 1997-2021 Law Business Research

You need to be logged in to make a comment. Log in here.
Many thanks. Your comment has been sent.

Your details



Your comment or question *