Despite representatives of the employers wind up against the project, the new law to prevent moral harassment at work was adopted Thursday by the deputies.
Despite firm and unanimous opposition from employers, the government obtained on Thursday, in the Chamber of Deputies, the adoption of its bill against moral harassment at work, carried by the Socialist Minister Georges Engel – a measure which appeared in the coalition agreement reached in 2018.
From the rostrum of Parliament, the Minister of Labor insisted on the “unacceptable” nature of this kind of behavior and the need for a clear legal framework, “in the interest of employers and employees”.
Highly anticipated, as cases of harassment have multiplied in recent years (read opposite), the text details a series of obligations for employers who notice a case of moral harassment within their company. With, if the situation were to persist, the launch of a special procedure by the Labor and Mines Inspectorate (ITM).
The law provides that the administration investigates the file and hears the victim and the alleged perpetrator, before rendering its conclusions within 45 days. The employer will be forced to apply the recommendations of the ITM to put an end to the harassment, failing which, administrative and penal sanctions will be imposed on him.
Modeled on the legislation for sexual harassment
In order to prevent the victim from denouncing the facts, for fear of reprisals, the new system is based on the legislation in force for sexual harassment, and provides for protection, including dismissal. Any witnesses as well. Concretely, his reinstatement in the company can be ordered by simple request.
Another essential point in relation to the current framework: the employee can now terminate his employment contract at any time and without notice, with damages payable by the employer.
Pending a court decision, the employee forced to resign or wrongfully dismissed for serious misconduct, will be authorized to receive unemployment compensation. It will be up to the party convicted by the courts at the end of the trial to reimburse the Employment Fund for the indemnities paid on account.
Social dialogue “scorned”: employers are strangled
What make the representatives of employers jump, galvanized against this bill, which they have asked for the withdrawal again in recent days. With one voice, the Union of Luxembourg Enterprises (UEL), the Chamber of Commerce and the Chamber of Trades denounce the total contempt for social dialogue, “scorned” in this case, the government not having deemed it useful to consult them.
The employers’ organizations consider the inter-professional agreement, concluded between the social partners in 2009, and still in force today, amply sufficient to settle the problems linked to moral harassment, and point to a certain “legal insecurity” with a view to the coexistence of the two diets.
Unsurprisingly, the idea of referral to the ITM through a “special intervention procedure” does not please the employers’ representatives: they argue that it is “extremely complex” to distinguish what is moral harassment or not, because of a “strong subjective and emotional imprint”.
And they add – citing case law – that “the normal and legitimate exercise of hierarchical power” does not mean harassment, and that a superior must be able to “criticize the work performed”.
Finally, on the possibility of contesting a dismissal for serious misconduct which would intervene in retaliation, the bosses see it above all as an opportunity for “ill-intentioned employees” to brandish moral harassment just in order to touch unemployment.
Before coming into force, the bill must still be exempted from a second vote of the House, before being published in the Official newspaper.
Two out of ten employees concerned
According to the Quality of Work survey conducted in 2019 by the University of Luxembourg for the Chamber of Employees, two out of ten employees are victims of moral harassment.
The OGBL adds, for its part, that the higher education and research sector is particularly affected by the phenomenon.
As for the non-profit association Mobbing, which accompanies the victims, it is contacted each year by 600 to 700 people. In 2022, most (65%) were women, of Luxembourg nationality (32%), working in the fields of health and social action, commerce or education. The private sector accounted for more than three-quarters of the complaints, and these related to facts that occurred every day or almost according to the victims.