Background
Facts
Decision
Comment
To what extent can the actions of a superior in a company hierarchy towards a subordinate be qualified as moral harassment? How can a superior's powers of direction, control and punishment be distinguished from acts of moral harassment that could justify their dismissal? An appeal court decision dated 4 March 2021(1) provides some guidance on these matters.
The Convention of 25 June 2009 (the Convention) on harassment and violence at work (which was declared to be of general obligation by the Grand-Ducal Regulation of 15 December 2009) is, so far, the only legal framework in force in Luxembourg for employers on the subject of moral harassment.
Article 2 of the Convention provides that moral harassment is constituted:
when a person under the authority of the enterprise commits repeated and deliberate wrongful acts against a worker or a manager, the purpose or effect of which is either to infringe their rights or their dignity, or to alter their working conditions or to compromise their professional future by creating an intimidating, hostile, degrading, humiliating or offensive environment, or to alter their physical or psychological health.(2)
Moral harassment can be horizontal (between colleagues) or vertical (between a superior and a subordinate).
According to the jurisprudence, moral harassment in a company can constitute a real and serious reason for punishment, in particular for dismissal, when wrongful conduct (ie, vexatious, humiliating or dignity-destroying actions that affect the performance of the employment contract of the victim) is repeated – a single occurrence of such behaviour is not sufficient.(3)
The courts specify, in accordance with the provisions of the Convention, that the employer must take preventive measures to protect employees against moral harassment in the workplace. When informed of acts of harassment or of conflict between employees in the company, the employer must firmly intervene by managing the conflicting attitudes or acts. The employer is obliged to hear the alleged victim and to conduct an internal investigation, among other obligations.(4)
As for the employee who feels that they are a victim of moral harassment, case law specifies that it is up to the employee to resort to the company's alert procedure, which is provided for by the Convention.(5)
If an employee who considers themself to be a victim of moral harassment brings such a case before a labour court, it will be their responsibility to provide evidence of the alleged harassment.(6)
Nevertheless, the employer is obliged to fulfil employment contracts in good faith(7) (ie, ensuring normal working conditions for employees), by taking all necessary measures to prevent or put an end to any form of harassment, as the employer is the sole holder of the power of management and organisation within a company.(8)
In this context, the employer is obliged in particular to examine complaints brought before them and to deal with them within a reasonable period of time by hearing each party, carrying out an internal investigation and gathering all the information necessary to end the conflict in the interest of the victim's protection.(9)
If it is established that moral harassment has taken place, appropriate measures must be taken, which may include the dismissal of the perpetrator.
Thus, a dismissal for harassment must be preceded by an investigation and be based on real (ie, proven) conduct.(10)
Before making its decision on 4 March 2021, the Court of Appeal heard that an employee who had been hired as the company's head of compliance (which was a supervisory and managerial role) was dismissed with notice after two years of service.
The reason for the employee's dismissal was that their management style could have exposed her to complaints of moral harassment.
The Labour Court justified the dismissal and dismissed the employee of her compensation claims.
The employee appealed, arguing that the reasons for her dismissal were neither real nor serious as:
- they essentially related to "relationship problems"(11) between her and her subordinate colleague, and were merely the expression of the latter's subjective feelings;
- the criticisms she had made were merely legitimate observations that a superior is entitled to make about a subordinate's work performance; and
- personal circumstances and the "hypersensitivity" of her subordinate were relevant factors in the conflict. The appellant stated that these factors should be taken into account by the judge in their decision making.
The Court ultimately reversed the judgment of the employment tribunal, thereby declaring that the employee's dismissal was unfair.
No harassment without evidence
Indeed, most of the factors that were thought to have corresponded with moral harassment were dismissed from the proceedings based on a lack of evidence. This was particularly the case for the following accusations:
- the employee's subordinate had been replaced at short notice for a meeting with an alleged client;
- the employee had allegedly threatened that her subordinate would not be given a raise or would be transferred to another department; and
- the employee had allegedly made comments such as "you are going to die" or "we know you're sick, but it's mostly in your head".
This decision is, therefore, in line with the majority of case law that often rules out the qualification of moral harassment where the employee who considers themself a victim is unable to provide supporting evidence of the alleged harassment.(12)
In this case, it was the employer who decided to dismiss the supervisor for a management style that could have exposed her to complaints of moral harassment, without first providing concrete evidence that such moral harassment actually existed.
Therefore, the Court refused to validate the dismissal for "potential" moral harassment.
Normal and legitimate use of hierarchical power does not constitute moral harassment
However, the lack of evidence is not the only reason for judges to rule out the existence of harassment.
In this case, the Court also recalled the legitimate prerogative of a hierarchical superior to:
- give instructions to a subordinate;
- control a subordinate's work performance;
- express their appreciation of the work performed or omitted; and
- where appropriate, make criticisms or observations concerning the work performed, within the framework of the subordination relationship provided for in the employment contract.(13)
However, such a prerogative must be exercised with respect for the employee, as case law considers that:
the limit of abuse, and therefore of moral harassment, is only reached when the employer exercises his powers in an unjustified manner, i.e., either without any basis or in a disproportionate manner.(14)
In this respect, the consequences, sometimes negative, of normal and legitimate manifestations of the employer's power of direction (such as stress, pressure, fatigue, discontent or tension) may be perceived as moral harassment by employees.
However, according to case law:
a distinction must be made between a situation constituting moral harassment and a situation of tension, or even stress, even if intense, which is linked to a difficult professional context, to the nature of the employee's task or to the extent of his responsibilities, or even to an overload of work.(15)
Therefore, an employee's subjective feelings alone are not sufficient to justify the dismissal(16) of their supervisor where there is no proof that their supervisor acted in a way that is considered not to be within the normal framework of hierarchical authority.
In this case, the Court held that the dismissed employee's criticism of her subordinate for lack of autonomy and excessively copying her into emails were legitimate criticisms that a superior could address to a subordinate.
In addition, the fact that the dismissed employee had thrown a pen at another employee to stop the noise in the room while she was on a conference call was not deemed to justify her dismissal in this case. The Court noted that this act, although inappropriate and blameworthy, had occurred two years before the termination, in a particular context, and had not been the subject of any complaint by the employee concerned. On the contrary, the latter had stated that he was accustomed to the supervisor's managerial style being less formal than usual and that he appreciated her accessibility and straightforward way of speaking.
The Court also noted that several witnesses had recognised the dismissed employee's direct and casual style and language. However, it did not deduce that these were real and serious reasons for her dismissal in this case.
Until now, few proven cases of moral harassment have been brought before the courts.(17)
However, according to figures published by the Chamber of Employees, two out of 10 employees in Luxembourg consider themselves to be victims of moral harassment in the workplace. Moreover, data from the European Working Conditions Survey 2015 shows that Luxembourg has the second highest rate of moral harassment in Europe:(18)
- France: 12.2%;
- Luxembourg: 9.6%;
- Ireland: 8.3%; and
- Belgium: 7.5%.
Although the legislature has been reluctant to include moral harassment in the labour code until now, it seems that the times are changing.
On 23 July 2021, a bill was introduced with the aim to define and include moral harassment in the labour code and thereby further strengthen the existing legal framework.(19) Looking forward, it will be necessary to establish:
- what additional protective measures the legislator might provide for;
- whether employers' obligations will be reinforced; and
- whether the burden of proof could be lightened for the employee.
For further information on this topic please contact Guy Castegnaro, Ariane Claverie or Christophe Domingo at Castegnaro by telephone (+352 26 86 82 1) or email ([email protected], [email protected] or [email protected]). The Castegnaro website can be accessed at www.castegnaro.lu.
Endnotes
(2) Convention of 25 June 2009 on harassment and violence at work.
(3) Court of Appeal, 39728 of 16 October 2014.
(4) Court of Appeal, 44623 19 April 2018.
(5) Court of Appeal, 44858 of 12 December 2019.
(6) For example, Court of Appeal case 44560 of 26 April 2018:
Unlike French legislation, according to which the burden of proof of harassment does not fall on the employee, since the latter must simply "establish facts that allow the existence of harassment to be presumed", Luxembourg legislation does not establish any presumption, so that the burden of proof of the elements constituting moral harassment falls on the employee.
(7) Article 1134 of the Civil Code
(8) Court of Appeal, 43317 of 17 May 2018.
(9) Court of Appeal, 44623 of 19 April 2018.
(10) Court of Appeal, CAL-2020-00227 of 4 March 2021.
(11) Court of Appeal, CAL-2020-00227 of 4 March 2021.
(12) Court of Appeal, 44858 of 12 December 2019.
(13) See also Court of Appeal case 44858 of 12 December 2019:
The mere fact of giving orders and instructions, notwithstanding the autonomy enjoyed by an employee in his duties, does not constitute moral harassment, but is part of the constraints inherent in the subordination relationship.
(14) Court of Appeal, 42364 of 24 November 2016.
(15) Court of Appeal, CAL-2018-00869 of 22 October 2020.
(16) Court of Appeal, CAL-2020-00227 of 4 March 2021.
(17) In particular Court of Appeal case 41738 of 18 January 2018 and Court of Appeal case 43317 of 17 May 2018.
(18) From the "Quality of work index", published on 20 June 2019 by the Chamber of Employees of Luxembourg.
(19) Draft law 7864, which amends the labour code with a view to introducing a provision on protection against moral harassment at work.