At a time when victims of sexual violence are speaking out, and making significant waves in the media and beyond (the Weinstein affair, #Metoo, Balance ton porc, etc.), the Luxembourg Court of Appeal recently ruled on employers’ obligations regarding to sexual harassment complaints within their organisations. This article takes a look at what those obligations are.

Under Article L. 245-1 of the Luxembourg Labour Code, an organisation has legal obligations to prevent its employees from sexual harassment, including trainees, apprentices and students employed during the school holidays.

Article L. 245-2 of the Luxembourg Labour Code defines workplace sexual harassment as any behaviour with a sexual connotation or other behaviour based on sex which the perpetrator knows or ought to know it affects the dignity of a person. There are three conditions, one of which must be met:

• The behaviour is unwanted, inappropriate, abusive and offensive to the person subjected to it.
• The fact that a person refuses or accepts this conduct from an employer, employee, customer or supplier is used explicitly or implicitly as the basis for a decision affecting that person’s rights in relation to vocational training, employment, job retention, promotion, salary or any other employment-related decision.
• The conduct creates an intimidating, hostile, degrading, humiliating or offensive environment for the person subjected to it.

The behaviour in question may be physical, verbal or non-verbal.

Under the Labour Code, employers have three obligations in relation to workplace sexual harassment:

• An obligation to take all necessary preventive measures to ensure the protection of all individuals’ dignity in the context of labour relations (including information measures).
• An obligation to refrain from any sexual harassment in the course of employment relations. The employer is therefore liable to employees both for any harassment s/he may have committed and for failure to respond to acts committed by his employees, customers or suppliers.
• The obligation to ensure that any sexual harassment of which the employer is aware ceases immediately. Under no circumstances, may measures to put an end to sexual harassment be taken to the detriment of the victim of the harassment (Article L. 245-4 of the Luxembourg Labour Code).

In practice, the employer informed of a case of sexual harassment must carry out an internal investigation, hear from the alleged victim and the alleged harasser, and do so with the utmost discretion, given the considerable impact that such accusations can have on the reputation of a person wrongly accused.

For the employee who complains in principle, it will not be necessary to prove repeated acts in order to constitute a case of sexual harassment: a single act may, depending on its seriousness, be sufficient, unlike in cases of moral harassment (bullying).

What if the victim does not precisely report sexual harassment to the employer?

In the judgment under review, an employee resigned with immediate effect on 30 September 2016, and claimed in her termination letter that she had been the victim of (among other things) several acts of sexual harassment perpetrated against her by the company’s managing director in September 2015 and during the months of April, July and September 2016. She reproached her employer for not having taken the necessary measures to stop the sexual harassment of which she was allegedly a victim, which had caused her psychological issues.

The employee filed an application before the Labour Court to request that the employer be ordered to pay her damages for non-material harm, in addition to procedural compensation. As a counterclaim, the employer requested that the employee be ordered to pay compensation for failing to respect the notice period, damages and procedural indemnity.

The Labour Court dismissed the employee’s claims in their entirety and ordered her to pay the employer compensation. The employee appealed against the judgment.

Firstly, the Court of Appeal ruled on whether or not the employer had been aware of the acts of sexual harassment complained of. The Court of Appeal’s consistent position is that an employee’s report of sexual harassment must be sufficiently precise to allow the employer to act usefully and immediately take appropriate measures to put an end to any sexual harassment (see Court of Appeal, 1 July 2020, no. 2020-00781).

The employee admitted that she had not reported the acts of which she had allegedly been a victim to the employer while she was employed. Nevertheless, according to the employee, the employer acknowledged in a letter in response to her letter of resignation that he was fully aware of the actions of her harasser, stating that the employee had:

‘always gone along with the conduct with amusement, without ever having objected or expressed your disapproval to management.’

According to the Labour Court and the Court of Appeal, this statement does not constitute an acknowledgement of sexual harassment, but rather a denial of its existence.

The employer’s obligation to act and put an end to sexual harassment can only be validly implemented once the employee has made a precise report on the alleged acts, which it is up to the employee to prove.

The Court of Appeal adopted the same reasoning concerning allegations of moral harassment (bullying): in the absence of a precise report of the facts, the employer was unable to act usefully and effectively in response to the alleged harassment. They cannot therefore be blamed for having remained passive in the face of such a situation.

As a result, the Court of Appeal confirmed the Labour Court ruling.

This judgment provides an important reminder that people who feel they are victims of sexual or moral harassment must report the facts to their employer as soon as possible, in a precise and detailed manner, even if this step may seem difficult. Otherwise, the employer cannot act, protect the alleged victim as soon as the complaint is filed, and punish the perpetrator if the facts are proven at the end of the investigation.

For its part, it would be sensible for the employer to set up a harassment reporting procedure that is sufficiently clear and easy to access so that the alleged victims do not hesitate to report incidents.

#sexualharassment #metoo #internalinvestigation #damages #Luxembourg