Workplace harassment: handling an internal report in Luxembourg

1. General employer obligations regarding prevention

Scope of application

Both the employer and the employee are required to refrain from any moral or sexual harassment in the context of employment relations. This obligation extends to the conduct of the company's clients and suppliers: the employer must protect employees against acts committed by third parties, not only by colleagues or line managers (Art. L.245-4 and L.246-3).

Three-fold legal obligation

As soon as harassment comes to the employer's attention, the employer is required to:

2. Handling a report: chronological process

When an employee reports harassment — moral or sexual — to the employer, the handling must follow a sequential logic to comply with legal requirements and be enforceable in the event of legal proceedings (Art. L.246-3).

3. Conducting the internal investigation

Impartiality and promptness

The law requires that investigations be conducted in an impartial and prompt manner (Art. L.246-3). In practice, the person leading the investigation must not be in a direct line-management relationship with either party, and the investigation must not be unduly prolonged, as that risks allowing a conflict situation to persist.

Adversarial principle

Each party must have the opportunity to present their version of events and respond to the elements put to them. Hearing both parties — victim and accused — is essential for the investigation to be enforceable before the labour courts. Hearing any relevant witnesses may supplement the findings.

Documentation and confidentiality

Each step must be documented: records of interviews, a timeline of events, measures taken and their dates. Documentation is the employer's primary proof of good faith in the event of a dispute. At the same time, confidentiality must be rigorously maintained: only those directly involved in the investigation may access the information gathered.

Proportionality of interim measures

If a temporary separation of the parties is required during the investigation, it must be proportionate and must not constitute a disguised sanction against the victim. A transfer or redeployment that penalises the victim rather than the accused would constitute a retaliatory measure and would be void by operation of law.

4. Role of the staff delegation

Prevention mandate

The staff delegation ensures the protection of employees against harassment and may propose preventive actions to the employer. It may suggest training programmes, the creation of a listening unit, or a review of internal procedures (Art. L.245-6 and L.246-5).

Supporting the victim

The delegation is empowered to assist and advise any employee who believes they are a victim of harassment. In practice, the employee has the right to be accompanied by a delegation member during interviews with the employer as part of the investigation. For moral harassment, the law also allows the employee to be accompanied by any person of their choice from within the company's workforce (Art. L.245-6 and L.246-5).

Professional secrecy

Members of the staff delegation are bound by professional secrecy regarding facts brought to their attention in the exercise of their mandate. They may only disclose them with the express consent of the employee who approached them (Art. L.245-6 and L.246-5).

Sexual harassment: role of the equality delegate

Where the company has an equality delegate, that person assumes — in matters of sexual harassment — the same protection and support mandate as the staff delegation. The equality delegate serves as a preferred point of contact for employees who may not wish to approach the delegation directly (Art. L.245-6).

5. Protection against retaliation

Scope of protection

Any employee is protected against employer retaliation where they have protested against harassing conduct, refused to submit to it, or witnessed harassment directed at another employee. This protection applies both to direct victims and to witnesses who supported the report (Art. L.245-5 and L.246-4).

Void by operation of law

Any retaliatory act or measure is void by operation of law. This includes in particular:

6. External remedies and special cases

Referral to the ITM

If harassment persists after a report has been made, or if the employer fails to take adequate measures, the employee or the staff delegation may refer the matter to the Labour and Mines Inspectorate (ITM). The ITM has the power to order the employer to take the necessary steps. In the event of refusal or inaction, the employer faces an administrative fine of up to €25,000 (Art. L.246-3 and L.614-13).

Burden of proof and limitations

Recognition of harassment by the Luxembourg courts requires precise and consistent facts to be established. General allegations, without supporting evidence, circumstantial witness accounts or a formal prior report may be insufficient to prove harassment. The documentation of the internal investigation — interview records, documented timeline — constitutes essential evidence for all parties.

Whistleblowers: a distinct framework

The internal harassment reporting procedure must not be confused with the whistleblower protection framework. The latter applies to reports of violations of national or European law (fraud, corruption, regulatory breaches) and has its own legal framework, with specific reporting channels via MyGuichet.lu. The two regimes may overlap — an employee who is a harassment victim may also be a whistleblower — but their conditions of application and protections are distinct.