This summary of age discrimination law in Luxembourg has been prepared by Castegnaro, the Ius Laboris member for Luxembourg: www.castegnaro.lu
OVERVIEW
In order to enforce compliance with the principle of equal treatment, the EU Framework Directive 2000/78 was implemented by the law of 28 November 2006 and by the law of 13 May 2008. These measures prohibiting both direct and indirect discrimination have been introduced into the national legal system to protect employees against dismissal or other adverse treatment by the employer.
According to Article L.251-1 of the Labour Code (the Code), direct discrimination occurs where an individual is treated less favourably than another person has been or would be treated in a comparable situation on any of the following grounds: religion or belief, disability, age, sexual orientation, actual or supposed membership or non-membership of a nationality, an ethnic group or a race.
Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief, disability, age, sexual orientation, actual or supposed membership or non-membership of a nationality, an ethnic group or a race at a particular disadvantage compared with others, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Age discrimination
Article L.251-1 of the Code specifically prohibits any direct or indirect discrimination on the ground of age. However, certain exceptions apply as per Article L.252-2(1) of the Code which sets out that “differences in treatment on grounds of age shall not constitute discrimination, if they are objectively and reasonably justified between others by legitimate aims, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”. Additionally, Article L.252-2 (2) of the Code stipulates that ”the objective and reasonably justified determination, for social security professional regimes, of membership-ages or of eligibility-ages to pension benefits or disability benefits, including the determination for these regimes of various ages for employees or group or categories of employees and the use within the frame of these regimes of age-criterions in actuarial calculus, does not constitute an age discrimination upon the condition that it does not result in a sex discrimination.”
Harassment
Without prejudice to specific provisions on sexual harassment and bullying in the place of work, harassment shall be deemed to be a form of discrimination. It is defined as unwanted conduct related to any of the grounds referred to in paragraph (1) of Article L.251-1 of the Code, which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment in the context of employment relations (i.e. employment relationships involving all employees as defined in article L. 121-1 of the Labour Code, as well as interns, apprentices and pupils and students employed during school holiday) is any conduct which, by its repetition or systematic nature, undermines the dignity or the mental or physical integrity of a person.
Business travel, professional training and communications in connection with or as a result of work by any means whatsoever, even outside normal working hours, are an integral part of the employment relationship.
WHO'S COVERED?
The laws apply to all persons, both in the public and private sectors, including public bodies.
There are no specific limitations – the laws cover all ages and protects against discrimination of all age groups, be it young or old.
However, the laws do not apply to civil servants with regards to:
conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
employment and working conditions, including dismissals and pay.
Instead, civil servants are protected by other distinct laws.
In the context of an employment relationship, all employees, as well as interns, apprentices and pupils and students employed during the school holidays, are protected against moral harassment.
WHAT ENFORCEMENT/REMEDIES EXIST?
Under article 455 of the Penal Code, employers can face criminal sanctions for discrimination which range from eight days to two years imprisonment and/or a €251 to €25,000 penalty.
Harassment is covered under the law of 11 August 1982 on the protection of private life. A person who has deliberately troubled or bothered someone by repeated and inopportune phone calls or who has harassed this person by written messages or any other form of messages may face sanctions which range from 8 days to one year imprisonment and/or €63 to €1,250 penalty.
The law of 5 June 2009 has introduced an Article 442-2 in the Penal Code. This article provides for sanctions against stalking, which range from 15 days to two years imprisonment and/or a penalty of €251 to €3,000.
The Labour and Mines Inspectorate is entrusted with the application of the legislation and breaches of the Penal Code are dealt with by the Tribunal d’arrondissement, Chambre correctionnelle.
As far as the employment relationship is concerned, the Employment Court (Tribunal du travail) is the forum for complaints.
The Centre for Equal Treatment set up by the law of 28 November 2006 may advise the parties but may not intervene in the trial itself.
According to Article L. 253-4 of the Code, when a person bound by a collective agreement sues someone in a court regarding that collective agreement for problems of equal treatment, any trade union who signed the collective agreement may intervene if the solution of the litigation might represent a collective interest for its members. This is, however, not possible if the claimant disagrees to such an intervention.
Trade unions which are representatives at the national level or in a very important economic sector may exercise the same rights of claim as the victim of discrimination in any judicial or administrative procedure concerning an infringement of the legal provisions on discrimination. In order to be lawful, the trade union’s action must concern an infringement of the legal provisions on discrimination which is prejudicial to a collective interest that the trade union is bound to protect. Trade unions do not have to prove that they have a material/moral interest to bring the action. When the facts were committed against individuals, the trade unions may exercise the same rights of claim as the victim of discrimination only if those persons expressly declare on a written document that they agree with it.
A fine of between 251 and 2,500 euros shall be imposed on :
1° any employer, employee, customer or supplier of the company who commits acts of psychological harassment ;
2° any employer who fails to take steps to put an immediate stop to acts of harassment;
3° an employer who fails to determine the measures to be taken to protect employees against harassment;
4° an employer who fails to carry out an internal assessment ;
5° the employer, the hierarchical superior, the work colleague or any external person in contact with the employer, in particular the company's customer or supplier, in the event of reprisals.
In the event of a repeat offence within two years, these penalties may be increased to twice the maximum.
These sanctions apply only to moral harassment and not to discrimination.
HOW COMMON ARE CLAIMS?
Claims are very rare. Cases are generally resolved prior to the litigation stage on an amicable basis.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
The Rapport d’activité du Centre pour l’Egalité de Traitement, a survey published by the Centre for Equal Treatment (the Centre) in 2022 indicated that race was the most common type of discrimination, with 48 complaints filed to the Centre in 2022. The survey also showed that age and sexual orientation were the least common types of discrimination.
In practice, the most common types of discrimination based on the age are either: (i) discrimination against old workers for recruitment, harassment, access to promotion and dismissal; or (ii) discrimination against young workers' for remuneration.
RETIREMENT AGES
According to Article L.125-3 of the Code, an employee’s employment automatically ends on the day the employee gets a retirement pension or at the latest, at the age 65 (subject to the employee’s entitlement to a retirement pension). Employers do not need to terminate the employment of the employee.
An employer may not force an employee to retire before that age.
INTERESTING CASES
Whilst not a case, it may be worth noting that effective from 8 April 2018, employees who are entitled to an old-age pension are now entitled to severance pay. Prior to this change, employees who were entitled to old-age pension were not entitled to severance pay where they have been terminated with notice.