Guy Castegnaro Ariane Claverie December 11 2019 Moral harassment in the workplace: what is Luxembourg's stance? Castegnaro | Employment & Immigration - Luxembourg Guy Castegnaro, Ariane Claverie Employment & Immigration National legal frameworkWorkplace bullyingEmployers' obligations in matters of moral harassmentEmployers' obligation to create prevention policiesEmployers' obligations following psychological harassment complaintsEmployers' obligations in cases of proven harassmentEmployers' responsibilitiesCommentOn 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 frameworkIn 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); andthe 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 bullyingUnlike 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 harassmentIn 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 policiesAs 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 complaintsPursuant 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; andgather all of the information necessary to end the conflict and protect the victim.Employers' obligations in cases of proven harassmentIf 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; anda 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)CommentThe 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 ([email protected] or [email protected]). 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; andan association or non-association, true or supposed, with a nationality, race or ethnicity.(17) Article L253-2 of the Labour Code.