Castegnaro Cabinet d’avocats
Overview
The 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 provides :
Direct and indirect discrimination
Any direct or indirect discrimination on the ground age is forbidden. (art. 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 having 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.
Harassment
Without prejudice to specific provisions on sexual harassment and on bullying on the place of work, harassment shall be deemed to be a form of discrimination , when unwanted conduct related to any of the grounds referred to in paragraph (1) of article L.251-1 of the Labour code takes 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 ground of ageshall be deemed to be discrimination.
Victimisation/retaliation
The laws of 28 November 2006 and of 13 May 2008 have introduced into Luxembourg national legal system some measures to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.
a) Are there local as well as national laws?
There are only national laws.
b) In the EU were these laws introduced to implement the EU anti-discrimination directive?
Yes.
c) If the laws are not yet in force when are they expected?
The laws are already in force.
d) Can age discrimination be justified in your jurisdiction?
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.”
Who's covered?
a) Does it just cover employees or does it extend to self-employed, agency workers etc?
The laws apply to all persons, both in the public and private sectors, including public bodies.
b) Are there any specific limitations (eg only covers those over a set age, only discrimination against old not young workers)?
There is no limitation related to age discrimination.
c) Are there categories of employees who are excluded?
- 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;
- employment and working conditions, including dismissals and pay
(Modified law of 24 December 1985)
The protection of Civil servants against discrimination is provided by a distinct law.
What enforcement/remedies exist?
a) Are there criminal sanctions?
Under the Penal Code, employers face sanctions which range from eight days to two years imprisonment and/or a € 251 to € 25,000 penalty.
Under the law of 11 August 1982 on the protection of private life, the 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 draft law n°5907 will introduce sanctions against stalking, which will range from 15 days to two years imprisonment and/or € 251 to € 3,000 penalty.b) Is there an enforcing body?
The Labour and Mines Inspectorate is entrusted with the application of the legislation (article L.254-1 of the Labour code).
c) What civil remedies exist (e.g. compensation - how calculated? any limits?)
No special civil remedies are provided for by the laws.
d) What court/tribunal are claims brought in?
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 competent 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.
How common are claims?
Claims are very rare. The litigations are generally resolved prior to the lawsuit stage on an amicable basis.
What claims are most common and what are trickiest issues for employers?
A 2005 inquiry ascertained that age is the most common ground of discrimination in practice:
- Discrimination against old workers for recruitment, harassment, access to promotion and dismissals;
- Discrimination against young workers remuneration.
However, the same inquiry ascertained that claims are very rare (Discrimination à l’emploi, Panel socio-économique „Liewen zu Lëtzebuerg », Cahier Psell n°151, December 2005).
The legislation provides for two possible exceptions (please refer to point d under “victimisation”).
Retirement ages
According to article L.125-3 of the Labour Code, the employment contract automatically ends the day when 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.
Interesting cases
There is no interesting published case.