The practice of denouncing employers by their employees via social networks - known in the US as "name and shame" - is currently growing in popularity.
This is even the case in Luxembourg, if we take into account the newly created Instagram account called "Balance ta start-up". Similar accounts have already existed for some time in neighbouring countries, as demonstrated by the French account "Balance ton cabinet d'avocats", on which even Luxembourg law firms have already been singled out.
As a result, more and more anonymous accounts of breaches of employment law, most often linked to accusations of discrimination, are taking over Instagram.
The right to freedom of expression
These practices may initially appear to be a form of exercising the right to freedom of expression as enshrined in the Luxembourg Constitution and the European Convention on Human Rights.
This is exacerbated by the fact that employees, who are generally considered to be the "weaker party" to the employment contract, often have great difficulty defending themselves in cases of discrimination or harassment.
By the very nature of the employment contract itself, the employee is in a relationship of subordination to the employer.
The practice of "name and shame", which seems to be the alleged victim's last line of defence, does, however, in my opinion, run up against a number of important principles governing a state governed by the rule of law.
Limits to the right to freedom of expression
First of all, the adversarial principle is rarely respected in such a practice. Under this principle, the employer should have the right to be informed of the facts of which he is accused and to take a position on them before any accusations are made against him on the Instagram account.
The same applies to the principle of the presumption of innocence, which means that an individual cannot be considered guilty of a violation of the law until he has been definitively judged as such by a court of law.
In addition, an employee who decides to denounce his or her employer through the "name & shame" practice risks committing a breach of his or her duty of loyalty and, where applicable, of his or her duty of confidentiality, and thus exposes himself or herself to possible liability action, or even dismissal for gross misconduct, on the part of the employer who has suffered commercial or other damage..
Finally, such a denunciation will not provide any direct concrete solution to the problem that the employee is or was facing in the workplace.
Even if such a practice is, in my opinion, intolerable and reprehensible, we must nevertheless try to understand the reasons behind the actions of apparently disillusioned employees and consider possible remedies to avoid a further increase in this practice.
The reasons for this practice
This practice can be explained firstly by the weakness of the legal means currently available to employees faced with discriminatory behaviour in the workplace.
It is often very difficult, if not impossible, for an employee to prove or establish facts that he or she considers discriminatory.
What's more, these accusations are often examined by the courts once the employment contract has been terminated, i.e. when the employee has already lost or abandoned his or her job.
Finally, the length and cost of legal proceedings do not help matters either and often discourage employees from taking legal action. As accusations are most often based on evidence, in addition to the difficulty of finding witnesses who are willing to testify against their employer or ex-employer, the passage of time will certainly not help witnesses to remember the accusatory facts in detail.
What can we do about it?
Modernisation of employment law
A first remedy for this practice could be to modernise our labour law more quickly. Such modernisation must involve adapting our labour law to the new challenges facing employment, which also include the fight against all forms of discrimination in the workplace.
Against this backdrop, it is difficult to understand why a specific law to combat moral harassment has still not seen the light of day, despite numerous government attempts in the past. Despite the existence of the convention of 25 June 2009 on harassment and violence at work, which has been declared a general obligation, this convention, although useful in terms of preventing and managing harassment, does not provide satisfactory answers in terms of proof or protection for victims or witnesses of acts of harassment.
In its coalition agreement of 2018, the current Luxembourg government undertook to legislate "as soon as possible" on moral harassment. Although a bill was tabled in July 2021, it is unfortunately highly unlikely that it will see the light of day before the next parliamentary elections scheduled for 2023.
However, the draft provides for a number of improvements on the current situation, in particular the involvement and intervention of the Labour Inspectorate in establishing proof of alleged acts of psychological harassment, as well as the protection of victims and witnesses and special compensation for psychological harassment.
Strengthening social dialogue
Finally, a social dialogue within the company that is more and more clearly geared towards combating discrimination and harassment in the workplace could also be a way of avoiding denunciations in the public arena that is Instagram, for example.
Conclusion
The practice of "name and shame", which is certainly unacceptable and reprehensible, nevertheless demonstrates both the importance of promoting high-quality social dialogue in companies and the need to modernise our labour law more quickly.
Guy Castegnaro