This summary of age discrimination law in Luxembourg has been prepared by Castegnaro, the Ius Laboris member for Luxembourg: www.castegnaro.lu
EU Framework Directive 2000/78 has been implemented in Luxembourg by the law of 28 November 2006 and by the law of 13 May 2008.
The legislation outlines the following types of discrimination:
- Direct and indirect discrimination
- Any direct or indirect discrimination on the ground of age is forbidden. (Article. L.251-1 of the Labour code)
Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the ground of age.
Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a particular age, at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
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 unwanted conduct related to any of the grounds referred to in paragraph (1) of Article L.251-1 of the Labour code which take place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. An instruction to discriminate against persons on the grounds of age shall be deemed to be discrimination.
The laws of 28 November 2006 and of 13 May 2008 have introduced some measures into the Luxembourg national legal system to protect employees against dismissal or other adverse treatment by the employer, as a reaction to an internal or external complaint or legal proceedings aimed at enforcing compliance with the principle of equal treatment.
Age discrimination can be justified in Luxembourg. According to Article L.252-2 (1) of the Labour code (introduced by the law of 28 November 2006): “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”.
In addition, according to Article L.252-2 (2) of the Labour code (introduced by the law of 13 May 2008) :”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.”
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 as regards:
- 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; and,
- employment and working conditions, including dismissals and pay.
The protection of Civil servants against discrimination is provided by distinct laws.
What enforcement/remedies exist?
Under the Penal Code, employers can face criminal sanctions 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 (Article L.254-1 of the Labour code) 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 Labour 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 in the case if the solution of the litigation might represent a collective interest for its members. This is however not possible if the claimant disagreed on 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.
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?
A survey of the Centre for Equal Treatment realised in 2014 shows that age is the least common ground of discrimination (Rapport d’activité du Centre pour l’Egalité de traitement 2014).
In practice, the most common discriminations based on the age are the following:
- discrimination against old workers for recruitment, harassment, access to promotion and dismissals; and,
- discrimination against young workers' remuneration.
According to Article L.125-3 of the Labour Code, the employment contract automatically ends the day that the employee gets a retirement pension and at the latest at age 65, under the condition that the employee is entitled to a retirement pension. As a matter of fact, the employer does not need to dismiss the employee.
The employer may not force an employee to retire before that age.
There are no interesting published cases.