CMS Expert Guide on sexual harassment in the workplace

From a Swiss perspective, the term sexual harassment in the workplace covers any behaviour with a sexual aspect or based on gender that is unwanted by and humiliating to the recipient.

Employers are under an obligation to ensure that employees are not sexually harassed, and that any victim of sexual harassment suffers no further adverse consequences: (art. 328 para. 1 of the Code of Obligations).

Swiss law also provides for an express prohibition of discrimination through sexual harassment in the workplace, which includes in particular threats, the promise of advantages, the use of coercion and the exertion of pressure in order to obtain favours of a sexual nature (art. 3 of the Gender Equality Act 1995).

In addition, administrative law imposes the obligation on employers to take the measures necessary to protect the employee's personal integrity, which includes measures against sexual harassment under the Equality Acts.

Sexual harassment may result in a prosecution. Depending on the severity, a fine, a monetary penalty or a custodial sentence may be imposed.

It is also worth mentioning that various collective bargaining agreements set out provisions prohibiting sexual harassment.

The Luxembourg Labour Code dedicates an entire chapter to sexual harassment (article L.245-1 following the Labour Code) which has been introduced by the law on 26 May 2000 (law on protection against sexual harassment in employment relations and amending various other laws currently incorporated into the Labour Code).

The law defines sexual harassment as any conduct with a sexual connotation or any other conduct based on sex that the person who is guilty of it knows or should know affects the dignity of a person, when one of the following conditions is met:

  • the behaviour is unwanted, unintentional, abusive and hurtful to the person being abused;
  • the fact that a person refuses or accepts such conduct on the part of the employer, an employee, a customer or a supplier, is used explicitly or implicitly as the basis for a decision affecting that person's rights with regard to vocational training, employment, job retention, promotion, wages or any other decision relating to employment;
  • such behaviour creates an intimidating, hostile, degrading, humiliating or offensive environment towards the person being subjected to it.

The behaviour may be physical, verbal or non-verbal.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

Yes. Employers are not only obliged to intervene where sexual harassment occurs but they also have to prevent sexual harassment in the workplace in order to fulfil their duty of care and comply with the various legislative requirements to take all adequate and reasonable measures necessary to prevent sexual harassment.

The State Secretariat for Economic Affairs recommends implementing, in particular, the following measures:

  1. Employers should have in place a document outlining the principles (i.e. a policy document), containing (at least) a declaration of principles, in which the employers state that they are firmly opposed to sexual harassment and will not tolerate it, a definition of sexual harassment (including examples), the offer of support for victims (including the name of a contact person), and the sanctions that perpetrators of sexual harassment will face. This document must be communicated to all employees orally and/or in writing;
  2. Employers should appoint a trustworthy, respected, impartial and credible contact person within or outside the company who can support victims in need of help or advice. Ideally, there should be two contact persons, one of each gender. It must also be taken into account that such a contact person should be properly trained; and
  3. Employers must take any other reasonable preventive measures. For instance, they should ensure that pornographic material is not shown or displayed in the workplace and that employees who make comments and jokes about sexual characteristics, sexual behaviour or sexual orientation will be spoken to and told to stop doing so.

The employer must take measures in order to prevent any harassment that could arise in the company. However, there is no set list of measures prescribed by law, and it is up to the employer to assess which measures are best suited to their company. However, the employer must keep in mind that their responsibility may be engaged if the measures they initiate are insufficient to ensure an environment that respects the dignity of all employees.

In practice, the following options can be adopted by the employer to meet their obligation to find appropriate measures: ensuring good internal organisation within the company (listening to employees if necessary), training of high-executives, providing information and raising awareness to the employees (the information can be provided in the code of conduct or in the company charter), dissuasion and internal assessments of the prevention measures. These options are examples of the types of measures that an employer can take in order to comply with his legal obligation to take measures to prevent any harassment.

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

We have not been aware of a considerable increase in claims against employers as a result of #MeToo. The number of enquiries to specialist/advisory bodies increased in 2017, shortly after the launch of the #MeToo movement. However, the number of enquiries has now returned to a normal level. Swiss prosecuting authorities have seen very little change in the number of inquiries and criminal complaints. On the other hand, it seems that awareness of sexual harassment in the workplace is rising on the part of employers. We have seen a sharp increase in the demand for further training on the subject of sexual harassment and its prevention.

While the #MeToo movement has gained significant ground in countries all around the world, leading to more victims of sexual harassment and assault coming forward, this increase does not appear to be replicated in Luxembourg. Even if some employees who are victims of sexual harassment raise complaints, the debate on aggression and sexual harassment in Luxembourg occupies less public space. However, the lack of a significant #MeToo movement does not make Luxembourg a country where sexual harassment does not exist. Therefore, we have not seen a noticeable increase in our clients receiving harassment complaints. Most of the clients’ requests concern “moral harassment”. Although there is no standard definition, moral harassment is normally understood to involve non-physical acts of harassment in the workplace, occurring over a significant time period that have a humiliating effect on the victim.

Swiss law provides for a variety of legal remedies.

Employees who have been sexually harassed may suspend their work, and employers must continue to pay their salary during the suspension period.

Victims of sexual harassment may also lawfully terminate their contract of employment with immediate effect. In such cases, employees are entitled to damages equivalent to the amount they would have earned had the employment relationship ended after the ordinary notice period (usually 3 months).

Besides suspension and immediate termination of employment, victims of sexual harassment may bring an action against employers before the competent conciliation board, a court or the administrative body. To this effect, they may apply for an order prohibiting or stopping threatened sexual harassment, requiring sexual harassment to cease and confirming that sexual harassment is taking place if it is continuing to have a disruptive effect. On top of that, they may apply for compensation if the employer did not take sufficient measures to prevent sexual harassment. Such compensation may amount to up to six times the average Swiss monthly salary. In addition, victims may claim damages and satisfaction.

Employees may challenge a dismissal as a result of making a complaint of sexual harassment to their manager, or because of their initiation of legal proceedings. Remedies includes interim relief or compensation of up to six months’ salary within 180 days after termination of employment. Civil claims can also be brought against the harasser, and they may ask the court for injunctive relief as well as claim damages and satisfaction. The employee may also bring a criminal charge against the harasser.

A claim for sexual harassment can be brought against the employer and the employee who harasses the individual by the employee in front of the employment court.  Compensation for harassment is potentially uncapped and the legislation in force is in favour of the employee since there is a reversal of the burden of proof. This is a “shared evidence” system. The employee must provide some initial evidence (which must convince the court that their explanation is plausible) then the burden passes to the employer who must justify itself.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?


Although awareness of the issue of sexual harassment in the workplace has grown and the demand for specialised training for companies is increasing, tackling sexual harassment does not seem to be a top priority for employers. This may be against the background of Swiss law already having prescribed the implementation of measures against sexual harassment at an early stage, i.e., long before the #MeToo movement, and this has already become established corporate practice.

We would say amber, as sexual harassment is an important topic that all employers should be aware of. However, there are very few reports and court cases involving this kind of claim are dealt with sensitively.

6. Any other relevant information on workplace harassment?

Employees bear the burden of proof with regard to sexual harassment in the workplace. In this regard, a recent parliamentary initiative aimed to reduce the burden of proof in the context of sexual harassment in the workplace. This initiative was rejected. However, the Swiss Parliament is currently discussing whether a new study on sexual harassment in the workplace should be carried out (since the last study dates back to 2007/2008). This must be seen against the background of the Istanbul Convention Against Violence Against Women and Domestic Violence of the Council of Europe entering into force in Switzerland on 1 April 2018 and requiring members of the convention to collect statistical data on sexual harassment cases. A member of the Swiss Parliament recently requested the launch of a national prevention campaign against sexual harassment as well as the implementation of an action plan for the prevention of sexual harassment, which includes educational measures and training in companies. To date, this has not yet been discussed by the Swiss Parliament. The International Labour Organisation (ILO) is currently considering a new convention on the ending of violence and harassment in the working environment. The outcome is still unclear but could also affect Switzerland as a member of ILO.

Even if there is no specific change in the labour law regarding sexual harassment, we have noticed that there is growing pressure from social media and the media in some cases. In this regard, some trade unions are also applying pressure and are campaigning that the issue must not be treated as taboo and that politicians must broach the issue too. 

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

In Switzerland, there has not been a particular focus on this issue within any specific sector.

According to the 2019 Quality of Work index published by the Luxembourg Employee's chamber ("CSL"), professionals working in direct services, retail and sales are particularly concerned by harassment.