Sexual harassment in the workplace in Luxembourg

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.

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.

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.

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.

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.

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. 

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.