Observación (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre la discriminación (empleo y ocupación), 1958 (núm. 111) - Luxemburgo (Ratificación : 2001)

Article 1(1)(a) and (b) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee previously noted that, pursuant to Act of 3 June 2016, which amends the Labour Code, the Act of 13 May 2008 on equal treatment for men and women, and the conditions of service of local and central government officials, discrimination “on the basis of a change of sex” shall be deemed equivalent to discrimination on the basis of sex. It however drew the Government’s attention to the fact that, despite section 454 of the Penal Code, which defines discrimination as “any distinction made between persons on account of their origin, their skin colour, […] their political views […]”, the grounds of colour, political opinion, national extraction and social origin are not covered by the Labour Code (section L.241-1), the Act of 16 April 1979 establishing the general conditions of service for central government officials (section 1 bis) and the Act of 24 December 1985 establishing the general conditions of service for local government officials (section 1 bis). It requested the Government to amend these provisions to include colour, political opinion, national extraction and social origin. The Committee notes the Government’s indication in its report that Act of 7 November 2017 amending the Labour Code and the conditions of service of local and central government officials, introduced “nationality” among the grounds of discrimination prohibited under these laws. While welcoming this information, the Committee wishes to recall that the concept of “national extraction” covers distinctions made on the basis of a person’s place of birth, ancestry or foreign origin, and thus differs from “nationality” (2012 General Survey on the fundamental Conventions, paragraph 764). It further notes the Government’s repeated statement that victims of discrimination, on grounds which are not prohibited under section L.241-1 of the Labour Code, such as colour, political opinion, national extraction and social origin, can lodge a complaint under section 454 of the Penal Code, for which the Office of the Public Prosecutor will assess the case for prosecution. The Government adds that section L.244-3 of the Labour Code provides for a reversal of the burden of proof in labour tribunals where facts allow the presumption of the existence of discrimination, while under the Penal Code it is for the plaintiff to prove the existence of discrimination. The Committee is bound to reiterate that criminal prosecution is generally not sufficient to eliminate discrimination in the workplace: (1) because of its particular nature, which arises from the specific features of the work environment (fear of reprisals, loss of employment, hierarchies, etc.); and (2) because of the burden of proof, which is often hard to meet. Indeed, in the event of a complaint against discrimination, the burden of proof can be a significant obstacle, particularly as much of the information needed in cases involving unfair or discriminatory treatment is in the hands of the employer (2012 General Survey, paragraph 885). Furthermore, the Committee wishes to draw the Government’s attention to the fact that, at national level, the common understanding seems to be that the legislation does not protect against discrimination in employment and occupation on the grounds of colour, political opinion, national extraction and social origin. The Committee refers in that regard to the awareness-raising campaign carried out in 2018 by the Centre for Equality of Treatment (CET) to combat discrimination in recruitment, which referred only to the grounds of discrimination listed in section L.241-1 of the Labour Code, without making any reference to section 454 of the Penal Code (CET, 2018 annual report, page 75). In order to enable workers to assert their rights effectively in relation to discrimination based on all the grounds listed in Article 1(1)(a) of the Convention, the Committee urges the Government to take the necessary steps to amend the list of grounds of discrimination prohibited by the Labour Code (section L.241-1), the Act of 16 April 1979 establishing the general conditions of service of central government officials (section 1 bis) and the Act of 24 December 1985 establishing the general conditions of service of local government officials (section 1 bis) to include the grounds of colour, political opinion, national extraction and social origin. It asks the Government to provide information on any progress made in that regard. The Committee further asks the Government to provide information on the number of administrative and judicial decisions handed down by the competent authorities on cases or complaints for discrimination in employment and occupation, including on the basis of section 454 of the Penal Code, specifying the grounds of discrimination, the remedies provided and the sanctions imposed.

The Committee is raising other matters in a request addressed directly to the Government.