Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Luxembourg (Ratification: 2001)

Article 1(1)(a) of the Convention. Prohibited grounds of discrimination. Legislation. The Committee welcomes the provisions of the Act of 3 June 2016 which amend the Labour Code (section L.241-1), the Act of 13 May 2008 on equal treatment for men and women, and the conditions of service for local and central government officials. These provide that “discrimination on the basis of a change of sex shall be deemed equivalent to discrimination on the basis of sex”. However, the Committee notes again that by omitting colour, political opinion, national extraction and social origin, the Labour Code (section L.241-1) and the conditions of service for local and central government officials do not cover all the grounds of discrimination prohibited by the Convention. The Government indicates in its report that section 454 of the Penal Code defines discrimination as “any distinction made between persons on account of their origin, their skin colour, … their political views …” and that it considers that the grounds missing for the Labour Code and the conditions of service for local and central government officials are therefore covered. The Committee notes, however, that section L.244-3 of the Labour Code allows a reversal of the burden of proof in labour tribunals where facts exist that allow the existence of discrimination to be presumed, whereas under the Penal Code it is for the complainant to prove the existence of discrimination. In this regard, the Committee considers that criminal prosecution is generally insufficient to eliminate discrimination in the workplace because its particular nature, which arises from the specific features of the work environment (fear of reprisals, loss of employment, hierarchies, etc.) and because of the burden of proof, the latter often being difficult to discharge. In its General Survey of 2012 on the fundamental Conventions, the Committee observes that 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 (paragraph 885). In order to enable workers to assert their rights effectively in relation to discrimination based on the grounds listed in the Convention, the Committee asks 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 for central government officials (section 1bis) and the Act of 24 December 1985 establishing the general conditions of service for local government officials (section 1bis) in order to include colour, political opinion, national extraction and social origin. The Committee asks the Government to supply information on the progress made in this respect.

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