CMS Expert Guide on discrimination in the workplace in Luxembourg

The law of 28 November 2006 condemns discrimination against all persons, public and private, natural or legal, including public entities. The scope of the law includes the workplace and living areas, but also schools and the public space in general. This law amended the Labour Code and introduced a new section on equal treatment in employment and occupation.

The Labour Code now therefore provides that any direct or indirect discrimination based “on religion or beliefs, disability, age, sexual orientation, belonging or non-belonging, real or assumed, of a “nationality”, a race or an ethnicity is prohibited”. 1 Article L. 251-1 (1) of the Luxembourg Labour Code.

The Labour Code also provides protection against sexual harassment in the workplace. Currently, a bill to introduce a new section in the Labour Code concerning moral harassment is also in progress. In the meantime, the 25 June 2009 Convention on Harassment and Violence at Work applies.

The above-mentioned legislation prohibits discrimination based on sexual orientation, but also on religion, age, disability, race, ethnicity, moral and sexual harassment, and is applicable to all types of employees covered by an employment relationship. 

Note that the Labour Code's scope of application for discrimination in the workplace excludes interns, trainees and students.

The employer has a general obligation to promote health, safety, and non-discrimination among employees.  The procedure, however, in case of discrimination is not clearly defined by the Luxembourg legislation. 

The employer should therefore implement, in consultation with staff representatives, a written procedure for dealing with harassment problems – and by extension discrimination issues – based on internal assessments and investigation to be performed within the company (usually by the HR department).

Furthermore, note that there is no specific compensation. The only compensation the employee can claim would be via an action before the Labour Court to obtain damages for the employer's moral prejudice. However, the employee would need to prove this damage, and prove fault and misconduct on the part of the employer in terms of discrimination and/or harassment. 

The court would analyse this situation on a case-by-case basis. 

There are no mandatory measures that an employer must put in place to fight discrimination in the workplace. However, based on the employer’s obligation to promote health and safety, it is recommended that an employer adopt internal policies, trainings, and proceedings.

Such measures will protect the employer in case of a dispute with an employee since these measures will serve as valid proof that the employer tried to comply with its health and safety’s obligations.

In Luxembourg, the adoption of a D&I Policy is not a legal requirement. However, in practice these policies are becoming more and more common, and therefore are a must for major actors in the Luxembourg market.

There are no direct consequences for failure to adopt a local D&I Policy.

Almost all major actors in the Luxembourg market already have this type of internal policy in place. As a result, employees have become accustomed to this type of policy and the absence of such a policy is now the exception. 

In terms of a company's reputation, not having a D&I Policy could be interpreted as unfriendly towards employees and old fashioned compared with the market. Therefore, more and more SME employers in the market are developing their own D&I Policies to attract young talent.

For service-providing companies, such a policy is also becoming mandatory to meet the ESG standards of their clients.  

No, there is no obligation for employers in this respect. However, employers are obliged to respect the obligation of non-discrimination between employees provided for by the Labour Code.

In case of a dispute before the Labour Courts, ian employee that proves discrimination could be eligible for moral damages. However, in practice, a discrimination pay gap is difficult to prove since there is no tangible data available on the subject. 

Note that the Labour Code demands equality of remuneration between women and men  and any violation of the this principle can result in a fine of between EUR 251 and EUR 25,000. 

Because the General Data Protection Regulation (GDPR) has been transposed almost verbatim into national legislation, GDPR general rules therefore apply. There is no specific Luxembourg regulation regulating data protection.

There are no such quotas. The only mandatory rule is not to discriminate between employees as mentioned above.

There are no corporate governance rules in place. However, employers in Luxembourg are invited to take ESG criteria into account in their governance as a best practice.