Preventing and managing moral and sexual harassment in Luxembourg

1. Definitions and scope

Protected persons (art. L.246-1)

Protection covers a broad range of people:

• Employees bound by an employment contract (within the meaning of art. L.121-1).
• Trainees and apprentices.
• Pupils and students employed during school holidays.

Harassment may be committed by the employer, an employee, or a third party external to the company (client, supplier, contractor). The employer may be held liable in these situations if they failed to take appropriate measures.

2. Employer prevention obligations (art. L.246-3)

The employer has a dual legal obligation: to refrain from harassment themselves and to ensure that any harassment they become aware of ceases immediately.

Protection measures must be defined following information and consultation of the staff delegation (or the entire workforce in the absence of a delegation). They must cover at least four pillars:

The four pillars of prevention

1 — Reception and support

Define the resources available to persons reporting harassment: a dedicated contact person, psychological support, and arrangements for return to work after an absence.

2 — Investigation

Establish a rapid, impartial and confidential internal investigation procedure. The investigation must gather the facts, hear all parties and be documented throughout.

3 — Awareness-raising

Regularly inform managers and employees about the definition of harassment, prohibited behaviours, the reporting procedure and applicable sanctions.

4 — Training

Train employees and, as a priority, line managers in early detection of at-risk situations and in managing reports.

Internal anti-harassment policy — recommended good practice

Beyond the minimum legal requirements, it is strongly advisable to formalise a written harassment prevention policy including:

• A management commitment statement ("zero tolerance").
• A reporting procedure with multiple channels (HR manager, trusted person, anonymous alert line).
• Designation of an internal or external trusted person, trained and independent of the management chain.
• Defined investigation timelines (e.g. triggered within 5 working days, closed within 30 days).
• Evidence preservation rules (witness statements, written exchanges, attendance records) to protect against potential litigation.

This type of policy is increasingly expected by courts and the ITM during inspections or in the event of a dispute.

3. Managing a report

As soon as harassing conduct is brought to the employer's attention — by the person concerned, the staff delegation, a witness or any other channel — the employer must act without delay.

3.1 Immediate measures

1. Take precautionary measures if necessary: physical separation of the parties, temporary adjustment of hours or workplace, for the duration of the investigation. These measures must not penalise the alleged victim.
2. Open an internal investigation: gather the facts, hear the victim, the person accused and any witnesses separately, with strict confidentiality throughout.
3. Evaluate the effectiveness of existing preventive measures and identify any organisational shortcomings (art. L.246-3).

3.2 Role of the staff delegation (art. L.246-5)

The staff delegation plays an active role in protecting employees:

• It can propose preventive actions to the employer.
• It can support and advise the alleged victim in confidence.
• It can accompany the employee during meetings with the employer as part of the internal investigation.
• With the employee's consent, it can refer the matter to the ITM on their behalf.

3.3 Referral to the ITM (art. L.246-3)

If harassment persists or the employer has not taken adequate measures, the employee or the staff delegation (with the employee's consent) may refer the matter to the Labour and Mines Inspectorate (ITM). The ITM:

• Conducts an adversarial investigation by hearing the parties.
• Draws up a report.
• The ITM director may order the employer to put an end to the conduct within a set deadline.

Non-compliance with the ITM's order exposes the employer to an administrative fine (see section 5).

4. Burden of proof

The burden of proof in harassment cases follows an adjusted mechanism that is favourable to the employee:

This regime applies to both moral harassment (art. L.246-4) and sexual harassment (Equal Treatment Act). It underlines the importance for employers of documenting their own management decisions clearly, so they can be distinguished from potential acts of harassment.

5. Protections and sanctions

5.1 Protection against retaliation (art. L.246-4)

An employee cannot be subjected to any retaliation for having:

• Protested against harassment directed at them.
• Testified in proceedings relating to harassment.
• Reported harassment to the employer, staff delegation or ITM.

Any act in breach of this protection, in particular dismissal, is null and void by operation of law.

5.2 Protection of witnesses

Protection also extends to:

• Witnesses who participated in the internal investigation or ITM procedure.
• Colleagues who supported the report.
• Staff delegation members who were involved in the case.

Employers often focus attention on the alleged victim and overlook the protection of these third parties. Any act of retaliation against them also engages the employer's liability.

5.3 Criminal sanctions (art. L.246-7)

The perpetrator of harassment — whether employer, employee, client or supplier — faces a criminal fine of €251 to €2,500.

5.4 Administrative sanctions (art. L.614-13)

For non-compliance with an ITM director order, the employer may face an administrative fine of €25 to €25,000.

6. Consequences for the employment contract

6.1 Termination by the victim

An employee who is a victim of proven moral harassment may invoke the seriousness of the facts to seek immediate termination of the contract at the employer's fault. This route follows the general mechanism for termination on grounds of serious fault attributable to the employer, the assessment of which remains subject to the sovereign scrutiny of the employment courts.

6.2 Damages

In the event of unfair dismissal linked to harassment, the employment court may order the employer to pay damages taking into account:

• The loss arising from the dismissal itself.
• The separate harm suffered as a result of the harassment (affront to dignity, moral injury, health impact).

Both heads of loss may be awarded cumulatively (art. L.246-4).

7. Remote work and cyberharassment

The legal definition of moral harassment (art. L.246-2) explicitly covers work-related communications regardless of the medium, including outside normal working hours. This encompasses:

• Repeated messages sent at unreasonable hours via professional messaging tools or collaboration platforms.
• Messaging groups (WhatsApp, Teams, Slack) used to exclude, humiliate or disparage an employee.
• Video conferences organised to put an employee in difficulty in front of colleagues.
• Excessive or intrusive surveillance of a remote worker (constant monitoring, mandatory camera-on policies).
• Systematic exclusion of a remote employee from team meetings or communications.