What about the penalty for psychological harassment when it is committed by a staff representative?
Since the entry into force of the Law of 29 March 2023 amending the Labour Code to introduce a framework for protection against moral harassment in the context of employment relationships (the “Law”), combating moral harassment has become a central component of employers’ workplace health and safety obligations.
Particular vigilance is all the more necessary as the Labour and Mines Inspectorate (“ITM”) is receiving an increasing number of complaints in this area. In this regard, the ITM has reported a steady rise in the number of complaints received, with 216 complaints in 2025, of which 112 led to the opening of an internal investigation. Beyond reflecting greater awareness among employees of such conduct, this significant increase highlights the undeniable need for an appropriate and structured response from employers. Failure to act may expose employers to administrative and criminal penalties, independently of the risk of having to compensate the employee concerned for the harm suffered.
In this context, the employer’s diligence is crucial in several respects. Its role is not limited to prevention and the implementation of internal policies. Where suspected harassment has been duly reported, the employer must establish the facts through a “prompt and fully impartial investigation”. This is a decisive step.
Where the allegations are substantiated, it is also necessary to assess whether the employer has implemented appropriate measures to put an end to the situation. This raises the question of the appropriate disciplinary sanction to be imposed on the employee identified as responsible for the acts of moral harassment. Particular attention must also be paid where the employee concerned is a staff delegate, whose employment contract is subject to a specific termination procedure.
1. Established Moral Harassment: What Sanctions Apply?
Following an investigation, an employer who concludes that moral harassment has occurred within the meaning of the Labour Code is required to take concrete action. In accordance with its general obligation to ensure employees’ health and safety, the employer must take “measures to bring the acts of moral harassment to an immediate end”.
Although the Labour Code does not specify the nature of the measures that may be taken against the perpetrator, established case law recognises that moral harassment may constitute genuine and serious grounds for dismissal.
In most of the cases examined, employers have opted for the most severe measure, namely dismissal with immediate effect, considering that such conduct constitutes gross misconduct making it “immediately and permanently impossible to maintain the employment relationship”. The perpetrator is therefore removed from the workplace with immediate effect. Such a measure may indeed appear to be the most appropriate, both in view of the seriousness of the misconduct and the obligation to bring the conduct to an end promptly.
Nevertheless, despite case law tending to uphold the validity of this sanction and the requirement for swift action, we believe that employers must still assess, on a case-by-case basis, whether the established facts are sufficiently serious to justify the immediate termination of the employment contract, rather than a “standard” dismissal, for example with notice but with an exemption from working the notice period. Although clearly less severe, the latter measure would nevertheless bring the situation to an immediate end.
Where the employer opts for dismissal with immediate effect, the question arises as to the time limit laid down in Article L.124-10 of the Labour Code, under which gross misconduct may no longer be invoked more than one month after the employer became aware of it. Recent case law recognises that this period begins to run from the date on which the employer has “conclusive evidence” that the misconduct occurred. In this particular context, we believe that the most appropriate approach would be to calculate this period from the date on which the investigation report concluding that acts of moral harassment occurred is finalised. However, investigative measures must be initiated as soon as possible following the complaint, as courts do not accept that an employer may harbour suspicions for several months before obtaining conclusive and verified evidence of the alleged misconduct.
In the event of litigation, the evidence gathered during the internal investigation is of decisive importance in assessing whether the dismissal was justified, a matter that will be independently determined by the Labour Court.
Against a backdrop of a continued increase in the number of internal complaints, whose handling requires a prompt and impartial response, the question also arises as to the involvement of a lawyer from the outset, instructed by the employer to conduct the internal investigation and prepare a report. In this regard, the Luxembourg Bar Association has recently clarified that no rule of professional conduct prevents a lawyer who conducted the investigation from subsequently representing the employer in litigation arising from the dismissal. This possibility is of particular practical value to employers, as the lawyer who conducted the investigation necessarily has a comprehensive understanding of the case from the very beginning of the procedure.
Finally, particular attention must be paid to confidentiality. Employers must ensure that the reasons for termination are set out in sufficient detail to comply with statutory requirements, while protecting, as far as possible, the identity of the victim and any witnesses.
2. When the Perpetrator Is a Staff Delegate: What Specific Rules Apply?
The choice of disciplinary sanction requires particular attention where the employee responsible for the misconduct holds a mandate as a staff delegate.
In such circumstances, the employer’s obligation to take measures to bring the acts of harassment to an immediate end is not diminished. However, this obligation must be reconciled with the rules governing the status of the employee concerned, who is legally protected against dismissal throughout the duration of their mandate. At first glance, this protection might appear to confer disciplinary immunity.
This is not, however, the case. While such protection is justified by the need to preserve the independence of staff delegates in the performance of their representative duties, it certainly does not prevent employers from taking disciplinary action in response to gross misconduct.
The Labour Code provides for a specific procedure in such circumstances, which may ultimately result in the termination of a staff delegate’s employment contract despite their mandate. However, this procedure applies exclusively in cases of gross misconduct. The legislation allows employers to suspend the employee from work with immediate effect. This measure must comply with the same formal requirements as dismissal with immediate effect, namely notification by means of a duly reasoned letter.
Accordingly, where moral harassment is committed by a staff delegate, an employer wishing to terminate the employment relationship must follow this specific procedure, provided that the conduct in question is considered to constitute gross misconduct.
At this stage, however, such a measure must not be regarded as dismissal with immediate effect in itself.
It is, in fact, a distinct measure that temporarily suspends the performance of the employment contract. The employee’s salary is maintained for a period of three months following the suspension. Only a court may subsequently order the judicial termination of the employment contract, determining whether the measure was justified or whether, conversely, it constitutes unfair dismissal.
The emergence of strict obligations on employers to combat moral harassment does not, therefore, allow them to depart from the specific protection regime applicable to staff delegates, which remains fully enforceable. In this respect, the employee’s status as a staff delegate does not raise the threshold of seriousness required to justify suspension, including where the employer seeks to set an example within the company. Gross misconduct must therefore be assessed according to the same criteria as those applicable to any other employee.
Conclusion
Ultimately, the special status of staff delegates neither relieves employers of their obligations in relation to moral harassment nor shields staff delegates from disciplinary sanctions where such conduct is established. Nevertheless, the specific legal framework applicable to these employees requires employers to exercise increased vigilance when conducting investigations and implementing appropriate disciplinary measures.
These two legal frameworks must therefore be reconciled to ensure their effective coexistence.
For any questions relating to the prevention and management of moral harassment in the workplace, the conduct of internal investigations or the implementation of disciplinary measures, Marie Bena, Elodie Rousseau and Ilaria Cendret are available to provide guidance and legal assistance.
Marie Bena, Partner : marie.bena@btplawyers.lu
Elodie Rousseau, Counsel : elodie.rousseau@btplawyers.lu
Ilaria Cendret, Junior Cendret : ilaria.cendret@btplawyers.lu