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11 December 2019
National legal framework
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
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)
In Luxembourg, harassment in the workplace is governed by:
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:
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)
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.
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:
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:
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.
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:
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)
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 (firstname.lastname@example.org or email@example.com). The Castegnaro website can be accessed at www.castegnaro.lu.
(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.
(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".
(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.
(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.
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