Labour minister Dan Kersch (LSAP) in September submitted a draft law, promised by his predecessor Nicolas Schmit (LSAP) in 2017, that is now being scrutinised by lawmakers. It would add a dedicated chapter on workplace bullying to Luxembourg’s labour laws, the so-called Code du travail.
“The only merit of the text is that of existing,” said Jean-Marie Bauler, a lawyer and representative of not-for-profit Mobbing asbl, in a damning verdict of the proposals. “If the law is passed in its current shape, nothing fundamental will change.”
Under the bill, cases of bullying reported in a company must immediately be transferred to the Inspectorate of Labour and Mines (ITM), a workplace health and safety watchdog, which then carries out an investigation and decides potential penalties.
But this could be off-putting, Bauler warns. The anti-bullying service had lobbied for a stronger role in offering mediation services, with the Chamber of Employees (Chambre des Salariés) also saying that mandatory internal procedures involving the staff delegation should have been established as a first step.
“A lack of resources and staff at the Inspectorate of Labour and Mines has been a long-standing problem to follow-up with every victim of bullying,” said David Büchel of the chamber. “There have to be enough experts who are specialised in dealing with this kind of issue.”
Bullying complaints up until now have been managed under procedures outlined in a 2009 agreement between employee and employer unions the implementation of which, however, hasn’t been monitored. “There is sadly no information on how many companies implemented the agreement fully, partially or not at all,” said Büchel.
“When you don’t know where the problem lies, you don’t know where to start with the solution,” said Jean-Paul Olinger, director of business union UEL. “We haven’t seen a study that says where we’re at,” he said about the impact of the 2009 agreement, establishing what has or hasn’t worked since then and identifying areas for improvement.
“People who wanted to report something could already do so,” Olinger said, adding: “We’re not saying nothing should be done.” But the union would have preferred seeing a review of measures already in place and a joint dialogue with employee groups and the government. Both the UEL and the Chamber of Employees (CSL) said they weren’t consulted ahead of the release of the draft law in September.
There are improvements in the law compared to the agreement, for example establishing a right of appeal in case a bullying victims feels they have been wrongfully fired. The 2009 document also foresaw no sanctions for failing to apply the rules set out. On the other hand, it included a section on violence at the workplace, which is missing entirely from the draft law presented in September. “We fear that this won’t be replaced, which wouldn’t be good. It’s a topic that’s also important,” said Büchel.
Questions remain for both employer and employee organisations whether the law will simply replace the 2009 agreement or whether both will be in force concurrently.
Burden of proof
But perhaps the biggest setback for the Mobbing asbl and Chamber of Employees is that the draft law fails to reverse the burden of proof from victim to suspect.
“Given the difficulties of proof often encountered, the Mobbing asbl had proposed a reversal of the burden of proof which already exists elsewhere in matters of sexual harassment,” said Bauler. Without this, nothing much will change for victims, agreed Büchel of the Chamber of Employees. “It will be just as difficult under this law for an employee to prove that they are being bullied,” he said.
And while it provides protections for bullying victims from being fired, witnesses don’t receive the same support--witnesses that can be essential to providing evidence during an investigation. “The witnesses usually still work in the company and fear to testify against their employer,” Büchel said.
For the UEL on the other hand, reversing the burden of proof could pave the way for wrongful accusations, Olinger said, adding that the presumption of innocence should apply. Even if exonerated, “something always sticks,” he said.
Around 16% of employees in Luxembourg said they experienced bullying in a Chamber of Employees survey. The Mobbing asbl received 631 calls by people seeking help last year. It opened 155 new casefiles, a 17% increase compared to 2019.
“There are people who are completed finished,” said Bauler. “It is really bad,” he said of bullying. Protecting employees isn’t only a question of mental health and wellbeing but also of economic cost, he said, because of loss of productivity and performance or sick leave.
The UEL for its part is trying to raise more awareness around workplace wellbeing, Olinger said. Bullying is also tied to economic pressure, exacerbated during the covid-19 pandemic, he said.
Survival of Mobbing asbl
Bauler showed little optimism that the draft law would undergo big changes as it is debated in parliament. A majority of members of parliament in the labour committee must in principle agree on the document before it can move to a vote in parliament.
The State Council must also give its opinion on the text and can make suggestions for change or issue formal opposition if it finds the text to be incompatible with other laws or international agreements.
Labour minister Kersch meanwhile is on his way out of government, stepping down at the start of next year to be replaced by Georges Engel (LSAP), who may or may not be open for talks.
But for the Mobbing asbl it could have far-reaching and perhaps unintended consequences, as some of its services risk being made redundant under the greater role given to the Inspectorate of Labour and Mines.
“The Mobbing asbl is at a crossroads. If the law is passed as it is, then it no longer exists. It doesn't get rid of it, but it won't get any more money from the state,” said Bauler. “It will more than likely have to dissolve.”