In Luxembourg, until now, there was no legal framework regarding moral harassment (unlike Luxembourg’s neighboring countries and unlike sexual harassment for which the legal framework exists in Luxembourg since 2008).

The Luxembourgish Courts have, until now, relied on the principle of good faith for execution of contracts or the obligation of the employer to ensure the employees’ health in the workplace, to sanction the employer liable for moral harassment.

Unlike sexual harassment in the workplace, the current regime of moral harassment does not give any protection to employees (among others against dismissal) complaining against moral harassment. Furthermore, the burden of proof of the moral harassment fall on the victim.

The draft law filed on 23 July 2021 defines the outline of the concept of moral harassment and has the ambition to bring real protection to the victims.

The concept of moral harassment

Scope of employees eligible for protection

The draft law is inspired by the Labor Code provisions concerning sexual harassment and defines the persons who can be victims of moral harassment:

• the employees,
• the trainees,
• the apprentices,
• the students who work during the holidays period

The aim is to protect the weak party of the employment relationship, the above-mentioned persons can bring an action against the employer based on moral harassment.

The conditions for moral harassment

According to the draft law, three elements are required to determine the presence of moral harassment:

• A behavior, an action or conduct occurring during the work time which includes the contractual work time but also the time devoted to the professional travel, training, communication linked to the work by any mean even out the normal work time,
• Reiteration or a systematization,
• An offense against dignity, or physical integrity by creating an intimidating, degrading, humiliating, hostile or offensive environment, and repeated actions aiming to, or having as consequences a deterioration of working conditions, likely to violate employee’s rights et dignity, to alter his physical or mental health or to jeopardize his professional future.

In that respect, an isolated case won’t be considered as a moral harassment.

Nevertheless, the Case Law regarding moral harassment, have admitted that an isolated case could be considered as moral harassment and that the repeated nature was not necessarily required (Appeal Court, 18 January 2018, n°41738 in a case where the employer hired an employee as an assistant, but the employer assigned the employee to a secretary position in the invoicing department).

We will have to wait till the final version of the law to see if this legal definition is maintained.

The obligation to take action against de moral harassment

The prevention

Before the occurrence of any moral harassment case, on the model of legal provisions regarding sexual harassment, the draft law foresees the obligation for the employees and the employer not to morally harass anyone at the workplace.

The employer determines after information and consultation of the staff delegation or, the entire staff (if there is no staff delegation), the measures to take to protect the employees against the moral harassment at work.

The staff delegation, if there is one, is responsable to ensure the protection of the workers against moral harassment during the working relationship.

The staff delegation can also suggest to the employer any preventive measures which it considers as necessary.

Post-harassment measures

Measures to be taken by the employer

In the presence of moral harassment, the draft law provides an obligation for the employer to stop moral harassment acts that he has been informed of.

The employer has several possibilities to take necessary measures to stop moral harassment and to protect the victim. However, by no means such measures can be taken against the victim.

The draft law provides that in the case of occurrence of moral harassment toward an employee, the employer has to make an intern evaluation concerning the efficiency of the prevention measures and the potential new prevention measures to take especially regarding the organization of the company for the modification of the process in case of moral harassment and the information of the employees thereof.

The draft law provides that when a case of moral harassment occurs and the employer is informed, he has to take the appropriate measures to stop immediately any moral harassment.

Employer’s inaction

In the case of moral harassment, two possibilities are given to do it to the victim.

If the moral harassment at work continues after applying measures or if the employer doesn’t take any appropriate measures, the employee or the staff delegation (with the concerned employee’s approval), can bring the case to Labor and Mines Inspectorate (the “LMI”).

The LMI will prepare a report (after hearing the different parties including the company’s employees) within 45 days from the day he brings the case and will take necessary measures to stop the moral harassment within a deadline, under injunction, or possibility to sanction the absence of action by a fine.

It has to be noted that on top of that the administrative fine which could be pronounced by the LMI, the moral harassment can also be punishable by other criminal penalty amounting of 251 to 2.500 euros (the penalty is doubled in case of recidivism).

The employee who is subject to moral harassment can also refuse to continue to work and can terminate the employment contract without notice for a serious reason with damages charged to the guilty employer because of its misconduct which led to immediate termination of the contract.

The employee can bring a specific claim for damages for moral harassment, which shall not be confused with his claim for damages in causal relation with the unfair dismissal. According to the draft Law, these two categories of claims for damages can be cumulated.

The protection of the victim employee against the dismissal

The draft law provides additional protection of the victim employee of moral harassment by forbidding any action against the victim, due to its protestations or its refusal to a moral harassment act. (the same protection exists currently for sexual harassment matters).

The same protection is foreseen for an employee who may have testified about moral harassment facts.

If the employer would dismiss the employee for this reason, the employee can bring an action for annulment dismissal, we needs to be filed within 15 days from the notification of the employment agreement termination. This action has to be filed with the President of the Labor Court.

The President of the Labour Court can order to the employment relation to be maintained or the reintegration of the employee.