Alerting the Inspectorate of Labour and Mines (ITM)

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Alerter l'ITM

Whistleblowers who report breaches of legal rules are protected against all forms of retaliation.

A European legal framework has been created to protect whistleblowers in certain areas of European Union action, particularly in the fields of labour law and health and safety at work. The law of 16 May 2023 has transposed the European directive into our national law, thereby adapting national law to the requirements of European legislation.

Luxembourg has 22 competent authorities, including the Inspectorate of Labour and Mines (Inspection du travail et des mines - ITM).

You can contact the Office for Whistleblowers to obtain general information on the competent authority for the type of alert in question, as well as confidential advice.

The ITM will receive alerts for violations (actions or omissions that are unlawful or go against the object or purpose of the provisions of the law) concerning:

  • labour law;
  • health and safety at work;
  • classified establishments;
  • the law of 21 November 2007 on minimum safety requirements applicable to certain road tunnels;
  • the law of 28 April 2017 on the control of major-accident hazards involving dangerous substances.

Persons who take retaliatory measures or who bring vexatious proceedings against whistleblowers are liable to a fine of between EUR 1,250 and EUR 25,000.

Who is concerned?

Whistleblowers working in the private or public sector who have acquired information concerning breaches in a work-related context including:

  • salaried workers (including civil servants and State employees);
  • job candidates;
  • persons whose work relationship has been terminated;
  • self-employed persons;
  • shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members;
  • volunteers and paid or unpaid trainees; and
  • any persons working under the supervision and direction of contractors, subcontractors and suppliers;
  • the organisation's external co-workers, clients and suppliers, where these are natural persons who have a direct contractual link with the organisation (consultants, agents, advisers, sub-contractors, natural persons with self-employed status, etc.).

Note: the term 'work-related context' refers to past or present professional activities in the public or private sector through which, regardless of the nature of these activities, people obtain information about violations and in the context of which these people could be subject to reprisals if they report such information.

Provided they meet the conditions laid down in the law, whistleblower protection measures also apply, where appropriate, to:

  • facilitators (natural persons who assist the whistleblower on a confidential basis during the whistleblowing process in a professional context);
  • third parties who have a relationship with the whistleblower and who are at risk of retaliation in a professional context, such as colleagues or relatives of the whistleblower; and
  • legal entities that the whistleblower owns, works for or is otherwise connected with in a work-related context;
  • persons who have reported or disclosed information on breaches anonymously, but who are subsequently identified and suffer retaliation.

The protection in question does not apply to:

  • reporting of breaches relating to national security; and
  • whistleblowers whose relationships are covered by:
    • medical confidentiality;
    • the confidentiality of lawyer-client relations;
    • the professional confidentiality binding on notaries and court bailiffs;
    • the secrecy of judicial deliberations;
    • rules on criminal procedure.

How to proceed

What can be reported?

As a whistleblower, you can report any breach of national law and/or European Union law, that is to say, acts or omissions that:

  • are unlawful; or
  • defeat the object or the purpose of the directly applicable rules of national law or European law.

You can communicate any information, including reasonable suspicions, concerning:

  • actual or potential breaches; and/or
  • attempts to conceal such breaches,

which have occurred or are very likely to occur:

  • in the organisation in which you work or have worked; or
  • with which you are or have been in contact through your work.

This may include breaches of the law, violations of internal regulations, discriminatory practices or any other behaviour that is illegal or contrary to employment law. Reporting relates to matters that have occurred or for which there is a strong probability that they will occur.

Please note: You may not disclose information which you have acquired or to which you have gained access by committing a criminal offence.

What are the conditions for protection?

In order to qualify for protection against all forms of retaliation, you must:

  • have had reasonable grounds to believe that the information on breaches reported was true at the time of reporting and that such information fall within the scope of the law; and
  • have made a report:
    • either internally: through the reporting channels of your undertaking or administration;
    • or externally: through the reporting channels of the competent authority;
    • or by way of public disclosure: following external reporting that yielded no satisfactory result.

Internal reporting

The Office for Whistleblowers can provide you with information and advice if you wish to make a report.

External reporting

If you wish to report breaches of the law, you can do so externally by approaching the competent authority:

  • either directly;
  • or after reporting the same internally;

in particular:

  • if it is not possible to remedy the breach effectively internally;
  • if you believe there is a risk of retaliation.

Reporting to the ITM

Submitting a report

If, as a whistleblower, you wish to report breaches falling within the ambit of the competences of the ITM, you can approach them in French, Luxembourgish, German or English:

  • via the procedure 'Alerter l’ITM' (Report to the ITM) on the secure platform MyGuichet.lu. This is a procedure requiring no authentication (see under 'Online services and forms'). You can:
    • report violations anonymously by creating an anonymous email account as shown below;
    • provide up to 20 documents that corroborate your disclosures in common formats (maximum size: 30 MB). If necessary, you can compress and zip your attachments before sending. This evidence will be kept secure and confidential;

This secure reporting platform guarantees the completeness, integrity and confidentiality of the information transmitted to the ITM.

  • by email at: alerte.externe@itm.etat.lu;
  • by post to the ITM's postal address: L-2010 Luxembourg, B.P. 27;
  • by telephone at: (+352) 247 76104;
  • in person at the ITM reception desk.
Contents of the report

You must present:

  • a clear, precise and detailed document; and
  • provide all the information you have collected.

The information provided should be as accurate and complete as possible.

You should describe the alleged violations in a factual and objective manner, avoiding speculation or personal opinions.

The information must be directly related to the object of the alert.

Where appropriate, you may mention the European Union or national laws that have been violated.

Anonymous or non-anonymous reporting

An 'anonymous alert' is any alert in which the whistleblower has chosen not to reveal their identity (surname, first name, occupation, identifiers, nominative email address, etc.), regardless of whether it might be possible to identify them following further investigation or research.

You can make a report by email and remain anonymous. You are not obliged to reveal your identity.

If you submit information anonymously, you must take care to remove any indication that could allow you to be identified (for example, your name as the author in the file properties of a document).

Note: in the course of investigations initiated following violation reports, the ITM may nevertheless obtain information containing identification data (including surname, first name, date and place of birth, address, telephone or fax number, email address and IP address), professional data (including profession, employer and occupation) or financial data (including payslips).

If you choose to identify yourself, or if a specific provision obliges the ITM to identify you, your identity is treated confidentially by ITM staff members.

ITM staff members have access to information sent to the ITM and are bound by law to professional secrecy.

They are required to respect confidentiality with regard to the identity of the whistleblower or the person concerned and to forward the report as quickly as possible to the members of staff in charge of processing it.

In addition, it is advisable, when describing the breach of law, to mention only those items of information that are necessary for the processing of alerts and, in particular, to avoid including, if it is not essential, particular categories of data (so-called sensitive data within the meaning of Article 9 of the General Data Protection Regulation (GDPR)) that concern the whistleblower or third parties (e.g. data revealing a state of health, data revealing trade union membership).

Type of evidence

Documentary evidence in support of the claim may be:

  • unabridged correspondence with the company concerned;
  • documents in support of the report;
  • photographs;
  • screenshots;
  • any other document useful for processing the alert.

Follow-up and processing of the alert by the ITM

The ITM receives and follows up alerts that fall within its remit.

It may ask the entity to which the report relates, in writing, to provide all such information as it deems necessary, whilst strictly respecting the confidentiality of the whistleblower's identity.

However, the ITM may have to disclose your identity. In this case, the ITM will inform you. It will make sure appropriate safeguards are put in place.

There may be specific variations depending on the nature of the violation reported and the external reporting channels chosen.

The ITM takes care, in particular, to:

  • acknowledge receipt of the report within 7 days from receipt thereof;
  • ensure that it is diligently followed up;
  • provide you with feedback within 3 months, or 6 months in duly justified cases;
  • communicate to you the final outcome of the steps taken in consequence of the reporting, subject to any information falling within the scope of a legal obligation to observe confidentiality, breach of which is punishable under criminal law.

Where the ITM receives a report which it is not competent to handle, it will forward it within in a confidential and secure manner (via a unique link) to the competent national authority. You will thereafter be kept informed by the latter authority.

Alerts may lead to action, for example, requests for information, on-site checks and sanction procedures.

Decisions and sanctions

After examining the case, the ITM:

  • may decide to close the procedure:
    • if the breach is clearly minor (even though other obligations or other procedures may be applied to address the reported breach);
    • in the case of repetitive reports which do not contain any meaningful new information compared to a past report in respect of which the procedure has been closed, unless new legal or factual elements justify a different follow-up.

The ITM will then notify you of its decision and of the reasons therefor.

Fines

If the breach is proven and the employer has not remedied the situation, the ITM forwards the case to the Office for Whistleblowers, which may impose an administrative fine on persons (natural or legal) who:

  • obstruct or attempt to obstruct an alert;
  • refuse to provide the information that the ITM deems necessary, or provide incomplete or false information;
  • violate the confidentiality of whistleblowers;
  • refuse to remedy the breach identified;
  • fail to establish channels and procedures for internal reporting and follow-up;
  • retaliate or initiate proceedings against whistleblowers and fail to comply with the whistleblower protection law.

The fines can range from:

  • from EUR 1,250 to EUR 25,000 if they take retaliatory measures or bring vexatious proceedings against whistleblowers;
  • from EUR 1,500 to EUR 250,000, in particular if they impede the making of a report, refuse to remedy a breach or have failed to put in place the required internal reporting channels (the fine may be doubled if the offence is repeated).

In addition, whistleblowers who have knowingly:

  • reported false information may be sentenced to between 3 days' and 3 months' imprisonment and a fine of between EUR 1,500 and EUR 50,000;
  • reported or publicly disclosed false information may be sentenced to between 8 days' and 3 months' imprisonment and a fine of between EUR 1,500 and EUR 50,000.

Damages and compensation

A person making a false report may incur civil liability. An entity suffering damage in consequence of this may claim compensation for the prejudice suffered before a court of law.

Public disclosures

Where, as a whistleblower, you publicly disclose a breach, you are entitled to protection under the law if:

  • you have first reported it internally and externally or directly externally, but no appropriate action was taken in response to the report within 3 months from your so doing; or
  • you have reasonable grounds to believe that:
    • the breach may constitute an imminent or manifest danger to the public interest (such as where there is an emergency situation or a risk of irreversible damage); or
    • in the case of external reporting, there is a risk of retaliation or there is a low prospect of the breach being effectively addressed, due to the particular circumstances of the case (such as those where evidence may be concealed or destroyed, or where an authority may be in collusion with the perpetrator of the breach or involved in the breach).

Protection against retaliation

No liability attaching to whistleblowers

If you fulfil the conditions for protection of whistleblowers, you will not be breaking the law when you disclose information, and you will not incur any liability:

  • as regards the reporting (done internally and/or externally) or the public disclosure, provided you had reasonable grounds to believe that the reporting or public disclosure was necessary in order to reveal a breach of the law;
  • as regards the way in which the information reported or publicly disclosed, or access to that information, was acquired (provided that such acquisition or access did not constitute a self-standing criminal offence);
  • on account of reports or public disclosures made, including in legal proceedings for defamation, breach of copyright, breach of secrecy, breach of data protection rules or disclosure of trade secrets, or for compensation claims based on private, public, or collective labour law.

You may then rely on this report or public disclosure to request that the proceedings be discontinued, provided that you had reasonable grounds for believing that the report or public disclosure was necessary to reveal a violation under the law of 16 May 2023 (see 'Legal references').

Prohibited retaliation measures

All forms of retaliation against you as a whistleblower on account of the report made by you, including threats of retaliation and attempts at retaliation, are prohibited.

In particular, the following are prohibited:

  • suspension of an employment contract, lay-off, dismissal, failure to renew or early termination of a fixed-term employment contract, or equivalent measures;
  • demotion or withholding of promotion;
  • transfer of duties, change of location of place of work, reduction in wages, change in working hours;
  • withholding of training;
  • imposition or administering of any disciplinary measure, reprimand or other penalty, including a financial penalty;
  • failure to convert a fixed-term employment contract into a permanent one, where you had legitimate expectations that you would be offered permanent employment;
  • a negative performance assessment or employment reference;
  • early termination or cancellation of a contract for goods or services;
  • cancellation of a licence or permit.

The following are likewise prohibited:

  • coercion, intimidation, harassment or ostracism;
  • discrimination, disadvantageous or unfair treatment;
  • harm to the person's reputation, particularly in social media, or financial loss, including loss of business and loss of income;
  • blacklisting on the basis of a sector- or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry;
  • psychiatric or medical referrals.

Action against retaliation measures

If you are suffering retaliation measures in your capacity as a whistleblower, you have the right, within 15 days following notification of the measures, to apply to the competent jurisdiction for a ruling declaring the measures to be null and void and ordering their cessation.

A person who has not pleaded nullity of the retaliation measures, or who has already obtained an order declaring them to be null and void, may still bring a claim for damages.

Reversal of the burden of proof

If you are suffering detrimental measures in your capacity as a whistleblower, you are automatically entitled to the benefit of a presumption that the measures in question have been taken against you as retaliation for the reporting.

Consequently, it is for the person who has taken the measures to establish the grounds therefor.

Confidentiality and data processing

Confidentiality

ITM ensures that the identity of the persons concerned is protected for as long as the investigations triggered by the alert are ongoing.

ITM staff members are legally bound to respect professional secrecy and treat all whistleblowing in strict confidentiality with regard to the identity of the whistleblower.

However, the ITM may have to disclose the identity of the whistleblower.

In such a case, ITM will inform the whistleblower before his or her identity is disclosed, unless such information is likely to compromise the investigations or legal proceedings concerned.

Processing personal data

Information on the processing of personal data in the context of a report to ITM is available here.

Online services and forms

Online services

ITM : Whistleblower

Other language(s)

Who to contact

Inspectorate of Labour and Mines

2 of 5 bodies shown

Office for Whistleblowers

Related procedures and links

Links

Further information

Lanceurs d'alerte

sur le site de l'ITM

Legal references

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