Castegnaro Cabinet d’avocats

www.castegnaro.lu

Overview

At the moment, Directive 2000/78 has not been implemented in Luxembourg yet. The draft law n°5518[1] providing for its implementation states that:

Direct and indirect discrimination

Any direct or indirect discrimination on the ground age is forbidden.

• 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 moral harassment on the place of work, harassment shall be deemed to be a form of discrimination within the meaning of paragraph (1), when unwanted conduct related to any of the grounds referred to in paragraph (1) 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 draft law n°5518 introduces 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 is only a national (draft) law at the moment.

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 law should be voted in within the year 2006.

d) Can age discrimination be justified in your jurisdiction?

Age discrimination can be justified in Luxembourg. According to article 5 of the draft law n°5518, “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”.

Who’s covered?

a) Does it just cover employees or does it extend to self-employed, agency workers etc?

The future law shall 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 future law shall not apply to Civil servants under article 2 (3) of the draft law n°5518):
• 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

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.

b) Is there an enforcing body?

The Labour and Mines Inspectorate is entrusted with the application of the law (article 25 of the draft law).

c) What civil remedies exist (e.g. compensation - how calculated? any limits?)

No special civil remedies are provided for by the draft law.

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.

How common are claims?

Claims are very rare, if not non-existent.

What claims are most common and what are trickiest issues for employers?

A recent 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). We have not yet the opportunity to deal with a case in this area.

Are there any specific exceptions in your laws?

The draft law states a general principle (please refer to point 1 e)), without listing the possible exceptions.

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.

[1] Draft Law n°5518, article 5.