First Half of 2023: Two Major Changes to Luxembourg Employment Law
Among the various developments introduced during the first half of 2023, including changes to the number of remote working days permitted for cross-border workers and the establishment of a legal framework to protect whistleblowers, two major changes deserve particular attention, as they apply to all companies, regardless of their size or sector.
The Right to Disconnect
Combating Harassment in the Workplace
It should be noted that, in both cases, certain employer obligations could already be implicitly derived from previously applicable rules, such as provisions governing working time, the obligation to ensure employees’ health and safety, and the 2009 collective agreement on harassment and violence in the workplace.
Law of 28 June 2023 Amending the Labour Code to Introduce a Framework for the Right to Disconnect
This law applies to all employers, without distinction, provided that they use digital tools for professional purposes.
The law requires employers to establish a specific framework ensuring respect for the right to disconnect. However, it provides no specific guidance on the form or manner in which this framework must be implemented.
It nevertheless specifies that the framework must be adapted to the circumstances and specific characteristics of each company. The obligation to establish such a framework is already widely interpreted by legal practitioners as requiring the implementation of a written internal policy.
As regards the practical measures to be implemented, companies retain considerable freedom in determining their content. Nevertheless, several measures can already be envisaged, including:
- Awareness-raising sessions on burnout;
- Restricting access to company servers during certain time periods;
- Introducing compensation mechanisms in cases of exceptional derogations.
Procedure
Where a company is covered by a collective bargaining agreement, the framework must be established through that agreement.
In the absence of a collective bargaining agreement or a subordinate agreement, the framework must be introduced following information and consultation of the staff delegation or, in companies employing at least 150 employees, by mutual agreement with the staff delegation.
Where there is no staff delegation, the employer determines the content of the framework independently and informs employees accordingly.
Sanctions
In the event of non-compliance with these new provisions, an administrative penalty may be imposed by the Director of the Labour and Mines Inspectorate (ITM).
The new Article L.312-10 of the Labour Code provides for an administrative fine ranging from EUR 251 to EUR 25,000, determined according to the circumstances, the seriousness of the infringement and the employer’s conduct.
It should nevertheless be noted that the legislator has granted employers an adaptation period, as this provision was scheduled to enter into force in June 2026.
However, this does not prevent the Labour Courts from ordering employers to compensate employees whose right to disconnect has not been respected.
Law of 29 March 2023 Amending the Labour Code to Introduce a Framework for Protection Against Moral Harassment in the Workplace
This law applies to all employees without distinction.
It should be noted that the new framework supplements the 2009 collective agreement without terminating the obligations established under that agreement. Both sets of provisions are therefore intended to coexist.
The law first introduces a new definition of what constitutes moral harassment.
Accordingly, the new Article L.246-2 of the Labour Code defines moral harassment as:
“Any conduct which, through its repetition or systematic nature, undermines a person’s dignity or psychological or physical integrity.”
Obligations
The law imposes new obligations on employers, particularly the requirement to “determine the measures to be taken to protect employees against moral harassment in the workplace”.
Once again, in the absence of specific requirements regarding the form of these measures, legal practitioners are likely to interpret this obligation as requiring the implementation of a dedicated written policy.
However, the law expressly identifies the areas that must be addressed by the measures introduced by employers under such a policy.
For example, the new Article L.246-3(3) provides for:
- Measures to support and assist victims;
- Prompt and impartial investigative procedures;
- Awareness-raising measures.
Where an employer becomes aware of a situation involving moral harassment, it is now required to take all necessary measures immediately to bring the reported conduct to an end.
The employer must subsequently carry out an internal assessment of the effectiveness of the preventive measures already in place.
It can therefore be expected that such policies will need to be adjusted according to the specific situations encountered by companies.
If the situation is not resolved, the employee concerned may now refer the matter directly to the ITM, which will prepare a report setting out the measures necessary to bring the harassment to an end.
The Key Role of the Staff Delegation
The law also strengthens the role of the staff delegation in combating moral harassment.
In addition to requiring employers to consult the staff delegation regarding the measures they intend to implement, the law expressly provides that, as the body responsible for ensuring the protection of employees against moral harassment, the staff delegation may directly propose any preventive measures it considers necessary.
It is also expressly authorised to assist employees who are victims of moral harassment in their dealings with both the employer and the ITM.
Sanctions
Depending on the circumstances, where the ITM has been contacted by an employee, it may require the employer to implement specific measures within a prescribed period, subject to an administrative fine.
Furthermore, the law expressly provides for criminal penalties applicable both to the perpetrator of moral harassment and to an employer who fails to take appropriate measures in response to such conduct.
These penalties consist of a fine ranging from EUR 251 to EUR 2,500, which may be doubled in the event of a repeat offence.
Compared with the previous framework, the law aims to provide greater protection to employees who are victims of moral harassment.
It further specifies that victims must not, under any circumstances, suffer retaliation for having resisted moral harassment or testified about such conduct.
Any dismissal based on such grounds would be null and void by operation of law.
For further information, please do not hesitate to contact:
Elodie Rousseau, Counsel : elodie.rousseau@btplawyers.lu