It took more than a year and a half, and several attempts in this area, for a law to be finally passed on protection against mobbing in employment relations.
Provided for in the coalition agreement 2018 - 2023, the prevention of moral harassment in the workplace was one of the government's major challenges on which it intended to legislate. This has now been achieved with this new law, which establishes a legal framework for moral harassment in the workplace.
Among other things, the new law introduces a number of innovations to protect against moral harassment in the workplace, such as administrative and penal sanctions for non-compliance with the obligations newly introduced in the Labour Code, and a special procedure for intervention by the Labour and Mines Inspectorate (ITM) if, despite the measures taken by the employer, the moral harassment does not cease, or if the employer fails to take adequate measures.
In terms of criminal law, the legislator now provides for the possibility of filing a complaint for moral harassment. In this case, the criminal authorities will have to investigate the case.
As for the other new measures introduced by the law, there's a vague impression of déjà-vu. Indeed, these measures appear to be largely copied from the existing legal framework for the prevention of sexual harassment, which brings no real novelty to the legal framework for the prevention of moral harassment in the workplace.
It should also be pointed out that this new legal framework will coexist with another framework already established by the social partners through the June 25, 2009 Convention on Harassment and Violence in the Workplace. This agreement lays down the general principles for preventing and protecting against acts of harassment and violence in the workplace, and is binding on all employers in Luxembourg, as well as on all employees, apprentices, trainees and pupils and students employed during school vacations.
As a result, the coexistence of the two regimes could give rise to legal uncertainty. In this case, it would seem that the provisions of the Convention declared to be of general application and not included in the law, or those deemed to be more favourable to employees, would apply in practice.
Finally, with regard to the burden of proof, the legislator has not opted for the mechanism of reversing the burden of proof to the benefit of the alleged victim, but has established the principle of the intervention of the ITM on the one hand, and the criminal authorities on the other, in order to establish the disputed facts.
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