Already in 2017, labour minister Nicolas Schmit (LSAP) had promised a law against moral harassment. His successor Dan Kersch (LSAP) submitted a draft law to parliament in September 2021, which was finally adopted in March this year under the stewardship of the current labour minister Georges Engel (LSAP).
“There was an actual need in Luxembourg to have a dedicated law,” said Philippe Schmit, a partner in employment law, pensions and benefits at Arendt & Medernach.
A 2009 agreement between employer and employee unions until now regulated reporting procedures but there was no monitoring of its implementation or its effectiveness.
Changes to Luxembourg’s labour law--the “Code de travail”--define bullying as “any conduct which, by its repetition or systematisation, undermines the dignity or mental and physical integrity of a person.”
That includes “behaviours which took place outside the workplace, for example at afterwork drinks or on business travel. They are expressly included in the definition,” said Schmit. “The idea was clearly to enhance the victims’ rights.”
The law not only defines bullying, it also creates new obligations for employers. Each company, regardless of its size, must have a policy in place outlining how to make a complaint and the steps that follow. They must also be proactive in preventing bullying as well as regularly assessing the policies in place.
It’s a little bit more cumbersome
“It’s a little bit more cumbersome,” said Schmit.
Policies must include different reporting levels. For example, if an employee feels bullied by an HR manager, there must be an opportunity to file a complaint through another channel, “so that you are always sure to have an internal person to whom you can report irrespective of who is bullying you.”
While employers have a general duty to ensure workplace health and safety, the law “is much more specific, and you really have an express obligation” to tackle bullying and moral harassment, the law firm’s partner said.
An earlier draft of the law had foreseen for all complaints to pass by the ITM, but this was dropped in favour of internal reporting. Victims can alert the ITM if they feel not enough is being done or they don’t trust their company in addressing the problem, which will prompt an investigation by the workplace health and safety authority.
Business lobbyists had opposed the law, citing a risk of false testimonies and wrongful accusations.
“The risk might be a little bit higher now at the beginning, when the law enters into effect,” said Schmit. Solid policies will help minimise this risk, he said. It will nonetheless be a challenge to separate victims as they are defined by the law from staff “who might feel that they are victims but may just be subject to a more abrasive management style.”
Not all difficult interpersonal relationships constitute bullying, he said. Outside counsel can help companies with a more neutral perspective, Schmit said. A mix of clients contacts the law firm, he said: those with existing policies that they want reviewed and updated to fit the new rules but also those who have had nothing in place until now.
But law firms also help with questions of data protection that can arise during investigations into bullying.
Companies that don’t put in place proper procedures among other penalties face administrative fines but in case bullying is confirmed might have to deal with damage claims by the victim. “This can go up to criminal liability of the employer,” Schmit said. Employees who make wrongful claims can also different types of punishment including criminal sanctions.
“There will be a lot of interaction between employment law, criminal law and data protection,” the legal expert said.
Room for interpretation
On the other hand, perpetrators might also try to argue their way out of an accusation based on the definition that bullying must be wilful and over a sustained period of time. “That’s why investigation measures are so important.”
This investigation ensures both sides of the conflict are heard, which Schmit called “quite a good solution” that tries to “mitigate the interests of all involved parties.”
Authors of the law had initially intended to reverse the burden of proof, meaning it would be up to alleged perpetrators to show they didn’t commit bullying. “It’s always difficult to prove that something did not occur,” said Schmit. On the other hand, it can also be hard for victims to collect evidence.
It’s up to the employer to define the right action
When a case of bullying is confirmed, companies must make sure that the problematic behaviour stops immediately. “It’s up to the employer to define the right action.” That can range from issuing a formal warning to training or terminating the job contract. “The law doesn’t give precise instructions. Employers have quite a lot of room for interpretation and flexibility to find the best measure adapted to the situation and the company as well.”
It is precisely this flexibility that led some parties to abstaining from the vote in parliament to adopt the changes. “We support the initiative of this law,” said Marc Spautz (CSV) at the time. But he criticised that the text “is not precise enough and leaves too much room for legal interpretation.”
The text was adopted with a slim majority of 34 votes out of 60 seats in parliament by the DP, LSAP, déi Gréng, the Pirate Party and déi Lénk, against 25 abstentions from the CSV and the ADR. One member of parliament did not vote.
Members of parliament agreed to a review of the law two years into its application.
“This is a problem”
The anti-bullying association Mobbing asbl was contacted 657 times last year, the group’s annual report showed. This resulted in 260 consultations, including 70 pyschological support sessions.
Women accounted for nearly two thirds of bullying victims, with more than three quarters of complaints coming from the private sector. Staff who were at the company for less than five years were more likely to experience moral harassment, making up 68% of the 75 case files opened.
Victims report high stress, anxiety and depression, insomnia and nervousness as a result of being bullied at work, with people in 61% of the case files on sick leave when they first contacted Mobbing asbl.
In a survey on the quality of working environments in Luxembourg, the Chamber of Employees last year found that nearly one in five respondents (19.3%) reported experiencing bullying.
The ITM in turn reported 405 requests for information relating to workplace bullying last year, resulting in 35 complaints filed. “It shows clearly that this is a problem,” said Engel during a press conference in May as the ITM launched a campaign to inform employers about their new obligations.
“A law sets the framework much more clearly,” he said, and would also make it clear that bullying is a serious offence and not a triviality.
“It will definitely raise awareness,” concluded Schmit.