What you should know and do to fight against moral harassment in the workplace?
Moral harassment was not formally regulated in Luxembourg law. The only applicable instrument is the Convention on Harassment and Violence at Work dated 25 June 2009 between the OGB-L and LCGB trade unions, declared to be of general application by a Grand-ducal regulation of 15 December 2009. Also, Luxembourg courts based their decisions issued on moral harassment on the civil legal provisions and in particular the provisions foreseeing good faith and loyalty in the performance of the contract.
On 9 March 2023, the Luxembourg Parliament adopted a law introducing a new legal framework into the Labor code to fight against moral harassment during employment (“New Law”). On 5 April 2023, the New Law was published in the Luxembourg official gazette and entered into force on 9 April 2023.
The New Law provides for the following:
- A definition of moral harassment in the course of the employment relationship
- New obligations for employers, in particular, on the implementation of preventive measures and procedures to fight against moral harassment at work
- A protection mechanism for employees
- New attributions for the staff representatives in the prevention and fight against moral harassment
What are the behaviors likely to constitute moral harassment in the course of the employment relationship?
The New Law provides for a broad definition of moral harassment in the course of the employment relationship. Moral harassment is defined as “any conduct that, by its repetition or systematization, undermines the dignity or psychological or physical integrity of a person”.
This definition not only covers acts or behaviors (committed by an employer, employee, customer or supplier) occurring in the place of work but also applies to those occurring during business trips, professional training, and/or communication in connection with or caused by work by any means and even outside the normal working hours.
What are the new obligations for employers in the event of moral harassment?
The New Law establishes the following new obligations for employers:
- Refrain from any act of moral harassment
- Take the appropriate measures to ensure that any act of moral harassment against employees ceases immediately
- Determine, after informing and consulting staff representatives (or staff directly in the absence of staff delegation), the measures to be taken to protect employees against moral harassment
- In case of acts of moral harassment, carry out an internal assessment of the efficiency of the preventive measures in place and the possible implementation of new preventive measures or the revision of applicable procedures, after consulting the staff representatives.
The New Law also provides a non-exhaustive list of preventive measures to be taken by employers, such as:
- Providing a description of the options available to victims of moral harassment (in particular, with help, support and measures for returning to work).
- Conducting prompt and impartial investigations of acts of moral harassment.
- Raising awareness among employees and managers of the definition of moral harassment, its management and the applicable sanctions.
- Informing staff representatives of the applicable obligations.
- Informing and training employees.
Where the acts of moral harassment do not cease, it must be noted that the employee concerned or the staff representatives (with the consent of the employee) may refer the case to the Labour and Mines Inspectorate (Inspection du Travail et des Mines – “ITM”). The ITM will investigate and may order the employer to take measures to make moral harassment cease under penalty.
The New Law provides for criminal sanctions for the employer in case of non-compliance with the above mentioned obligations (fine ranging between EUR 251 to EUR 2,500 doubled in case of repeated infringements).
What are the employees’ rights in case of moral harassment?
The New Law sets forth several measures to protect employees:
- Protection of the employee victim of moral harassment or who has testified against any retaliation. Any action taken with the intention of a reprisal will be considered as null and void. Criminal sanctions are also foreseen in case of reprisal (fine ranging between EUR 251 to EUR 2,500, doubled in case of repeat infringements).
- Upon dismissal, possibility for the employee to bring a legal action before the President of the Labor court seeking the voidance of the dismissal within 15 days as from the date of notification of the termination and requesting either their reintegration or a compensation of damage.
- Resignation with immediate effect for serious grounds of the employee victim of moral harassment and possibility to request the requalification of the termination into a dismissal and claim a compensation for damages.
What are the new powers of the staff representatives in the prevention and fight against moral harassment?
The New Law increases the role of the staff representatives, who are empowered to do the following:
- Suggest to the employer any preventive measures.
- Assist and advise the employee victim of moral harassment and may assist them during the employer’s interview.
For further information on what this development might mean for your organization and assistance to review and/or amend your internal procedures, please get in touch with your usual Baker McKenzie contact.