On March 9, 2023, the Chamber of Deputies voted in favor of a new law to protect employees against moral harassment in the workplace.

The introduction of a legal framework responds to a long-standing demand by the OGBL, which had already signed an interprofessional agreement on harassment and violence at work with the LCGB and the UEL in 2009 to fill a certain legal vacuum. The OGBL welcomes the government’s initiative to go beyond this interprofessional agreement and introduce a legal framework to combat moral harassment at work. Although there are still some obvious gaps in the text, a number of new provisions strengthen the protection of victims and place the employer at the centre of the system.

A text that includes the ITM

In addition to the elements inspired by the interprofessional agreement between unions and employers on the measures to be taken by the employer when he has been informed of a case of moral harassment in his company, the new law now provides for the involvement of the Inspectorate of Labor and Mines (ITM) in the process. Indeed, if the employee feels that the moral harassment persists after the implementation of measures, or if the employer fails to take adequate measures, the employee (or the staff delegation with the employee’s consent) can then refer the matter to the ITM.

The law stipulates that the alleged victim and the alleged perpetrator (or other employees and the employer or his representative, if applicable) must be heard by the ITM, which must then send a full report to the employer within 45 days of receiving the file. If the ITM decides that acts of moral harassment have occurred, the employer is ordered to take the necessary measures to immediately stop such acts, failing which the ITM is entitled to impose an administrative fine on the employer.

A broad definition of time and place

The new law also provides a fairly broad definition of moral harassment in the context of employment relations. The temporal dimension implies a repetition or systematization of acts, without defining a precise period of time. The spatial dimension, on the other hand, goes beyond the physical place of work. Thus, travel or business trips, off-site training, or communication during or outside of working hours are all part of the working relationship. The short definition of moral harassment should now be applied to a variety of situations without excluding any.

Protection for victims and a supportive role for employee representatives

The law also stipulates that the employee representative must provide support and advice to the victim. For their part, employees who consider themselves victims can now request that their employment contract be terminated without notice and without consequences for serious misconduct, and can even be awarded damages in certain cases.

Loopholes in the law that could have been avoided by prior consultation with the OGBL

When the draft law was presented in July 2021, the OGBL expressed its regret that it had not been consulted beforehand, as the leading syndicate in the country and a signatory to the existing interprofessional agreement on harassment and violence at work.

While the OGBL welcomes the government’s initiative to introduce a real legal framework to protect victims of moral harassment in the workplace, it considers that the law does not go far enough in many respects. For example, the ITM should have more resources and appropriate skills to carry out its tasks properly, which the law does not explicitly provide for. Other organizations, such as occupational medicine, could be mobilized to address this issue.

Second, the law does not address the fundamental issue of the burden of proof, which remains with the victim. As we all know, in practice it is still very difficult for a victim of harassment to prove it. The aspect of protection against dismissal should also be extended to witnesses, as they are crucial in cases of harassment and should be protected as well as the victims. Furthermore, fines for employers who don’t comply with their obligations to take the necessary measures to stop harassment are hardly dissuasive. The role of staff representatives is not sufficiently emphasized. And the support and assistance provided by representative syndicates to alleged victims is completely absent from the text. The principle of discretion, which is necessary to protect the dignity and privacy of those concerned, is not sufficiently taken into account.

Finally, what about the interprofessional agreement signed by the social partners in 2009, which also covers the issue of violence in the workplace, an issue that has been completely forgotten in the law? A priori, this agreement remains in force, at least for the aspects not covered by the new law. In practice, however, this could lead to legal uncertainty.

In conclusion, and in response to these various problems, the OGBL insists on being consulted before the next revision of the law, which is certainly a step forward but remains incomplete.

Manon Meiresonne, Deputy Central Secretary