Apart from measures in light of the COVID-19 pandemic (see 1.2 COVID-19 Crisis), only a limited number of changes in employment laws have been enacted in the last 12 months.
A large number of temporary measures have been introduced in light of the COVID-19 crisis, including the following.
Although the Belgian Constitutional Court considered the distinction between blue-collar and white-collar workers to be discriminatory, the Employment Contracts Act of 3 July 1978 still makes a distinction between the two categories of employees.
With the Unified Status Act of 26 December 2013, a first step towards harmonisation has been set: the same notice periods are now applicable for both categories, and the unpaid "waiting day" (carensdag/jour de carence) for blue-collar workers was abolished. However, some differences in other fields of the employment relationship remain (eg, vacation pay, social security contributions and guaranteed salary in the event of work incapacity), and still need to be harmonised by the legislator in the (near) future.
In addition to blue-collar and white-collar workers, there are specific rules for sales representatives, trainees, student workers, domestic servants, agency workers, etc. Executives and members of management do not constitute a separate category under Belgian employment law, and the provisions on white-collar workers apply to them.
Employment contracts can be concluded for an indefinite duration, for a definite duration, for a specific project, for a full-time or part-time function, for the replacement of an employee, for a seasonal employment, for a training period, for student work, etc. There are different requirements for different contracts.
An employment contract for indefinite duration is the most common employment contract used in Belgium; if not explicitly stated otherwise, every employment contract is presumed to be for an indefinite duration. An employment contract for definite duration ends upon the expiry date of the contract, unless the employment continues, in which case the contract will be deemed to be a contract for indefinite duration.
Successive employment contracts for definite duration are, in principle, deemed to be for an indefinite duration, unless the employer can establish that the succession of contracts was justified by the nature of the work or by other legitimate reasons, or unless the following conditions are fulfilled:
Subject to the prior authorisation of the Social Inspection, the total duration of the maximum four successive contracts may be fixed at three years. In this case, the minimum duration of each contract must be six months.
No specific or official form is required to establish an employment relationship. As a rule, an employment contract can be oral or in writing. However, for certain employment contracts, a written contract is required, entered into at the commencement of the employment at the latest, and containing specific clauses. This is the case for employment contracts for a definite duration or a specific project, part-time contracts, replacement contracts, student contracts, contracts for domestic servants, contracts for temporary workers and contracts for paid sportsmen for a definite duration. Non-compliance with these rules results in the contract being considered as a contract for indefinite duration.
According to the legislation on the use of languages in employment relationships, all social documents (documents addressed to the personnel) must be drafted in French, Dutch or German; documents in the wrong language may be considered null and void.
Terms that are often included are the date of entering into service, the function for which the employee is hired, the remuneration, working place and time, the applicable rules in case of illness and confidentiality/non-competition clauses. There is no strict obligation to include the benefits in the contract, although this is recommended. An exception to this rule is the remuneration and costs linked to home working/teleworking.
The contractual freedom of parties is limited by the rules of public policy, and by legal provisions that are deemed to be mandatorily binding. Moreover, the terms must comply with the rules laid down in the statutes, decrees and collective bargaining agreements (concluded at national, industry or company level), unless the terms and conditions would provide more protection for the employee.
In general, working time is 38 hours per week or 38 hours on average over a specified reference period (eg, 40 hours per week with 12 compensatory rest days over a reference period of one year in order to maintain the 38 hours on average). This maximum may be lower in some sectors, on the basis of a collective bargaining agreement (eg, the oil industry).
The maximum working time per day is nine hours (for a five-day working week) and the minimum is three hours. However, there are several exceptions to this rule (eg, within certain sectors, in the case of shift work and continuous work).
Working on Sundays, at night and on public holidays is prohibited except in specific cases and sectors. Flexible working arrangements (eg, night work, shift work) are thus possible, but are strictly regulated.
Work performed on a regular and voluntary basis, during a period that is shorter than normal, will be regarded as part-time employment. The written contract made for each employee before or, at the latest, at the beginning of the (execution of the) contract must specify the part-time regime and the working hours agreed upon.
In the event of non-compliance, the employee may choose the work schedule and work arrangement that is most favourable to him as part of those applied within the company. The minimum duration of a working period may not be less than one third of the weekly working time of a full-time employee of the same job qualification.
In principle, overtime work is prohibited, but there are specific exceptions (eg, for certain industries) and possibilities to request a derogation or a prior agreement from the Trade Union Delegation within the company (if any) and/or from the Social Inspection (eg, in the case of an extraordinary increase in workload).
Overtime pay is due for the situations in which overtime is allowed (50% of the salary and 100% on Sundays and public holidays). In addition to overtime pay, compensatory rest must also be granted within a certain period following the date(s) of the overtime. In some circumstances, this compensatory rest may also replace overtime pay, but this must be provided by a collective bargaining agreement (CBA).
Since 23 April 2019, working time can also be exceeded by 120 hours per calendar year (potentially to be further increased to a maximum of 360 hours). This "voluntary" overtime regime requires the initiative and written consent of the employee.
The overtime regulations are not applicable to managerial staff or employees in a position of trust, employees who work from home, sales representatives or domestic servants.
Parties are free to negotiate the salary package, provided that mandatory minimum wages are complied with. These are fixed per sector and included in collective bargaining agreements, and are generally computed based on seniority and the professional category of the employee. In any event, the minimum wage may not be lower than the guaranteed average monthly income fixed at national level, which is equal to EUR1,593.81 per month for employees who are 18 years or older (2020).
The majority of employees are entitled to a 13th month to be paid in December (by virtue of a sector/company-level CBA or an individual employment agreement), but this is not a statutory requirement.
Employees are commonly rewarded through performance bonuses, which can take the form of a cash amount, stock options or shares, but there are many other forms of “flexible rewards”. For example, the possibility to reward all employees with a non-taxable “profit premium” was recently introduced by law. Other common benefits in Belgium are meal vouchers, private use of a company car, non-recurring company performance-related bonuses (“CBA No 90” bonuses), pension plan coverage, hospitalisation insurance, etc. Bonuses should be included in the employees’ salary for the purpose of calculating their entitlement to vacation pay (see 2.5 Other Terms of Employment).
In principle, wages in Belgium are subject to an index mechanism provided by CBAs at sector level; ie, when the health index exceeds the benchmark index. The index system may differ from industry to industry, so the employer should check the applicable agreements. From time to time, the Belgian government decides to apply an "indexation leap" in order to improve Belgium’s competitiveness. The index mechanism is then blocked for a certain period.
In addition, maximum wage margins or increases (the "salary norm") are set at a national level for wage cost development for the coming two years. These salary freeze measures aim to limit salary increases by imposing a maximum available margin for increases of the labour cost (1.1% for 2019-20); the latter is done for the preventative securing of the competitiveness of Belgium. The employer will have to take this into account when applying or introducing any remuneration policies. Administrative fines may be imposed for any infringement of the maximum margin.
Employees generally have four weeks’ paid vacation per annum; this statutory minimum can be extended by CBAs at sector, company or individual level.
During their annual leave, employees are entitled to “single and double” vacation pay. For blue-collar workers, vacation pay is paid through the social security system (ie, vacation fund), and amounts to 15.38% of the gross annual salary, rounded up to 108%. This percentage corresponds to +/- two times four weeks of salary (single and double vacation pay). White-collar employees remain entitled to their normal salary during their annual leave and are also entitled to double vacation pay, which amounts to 92% of their gross monthly salary. They receive their vacation pay directly from the employer. For white-collar workers, a special vacation pay is also due at the moment of termination of the employment contract.
In addition to annual leave, employees are also entitled to ten public holidays per year.
Illness and Private Accidents
During the suspension of the employment contract, the employee receives the normal salary for 30 calendar days, although for blue-collar workers, the salary decreases by a certain percentage as of the eighth calendar day. This is the so-called guaranteed salary. During the first year of incapacity following the period covered by the guaranteed salary, the employee will receive illness benefits from the Health Insurance Fund. As of the second year, the employee will be entitled to invalidity benefits.
The employee has the right to be absent from work without loss of his or her normal remuneration on the occasion of certain family events (marriage, funeral, childbirth, etc), for meeting civil duties or in the case of appearance before a court.
Maternity and Paternity Leave
Women/mothers may take up to 15 weeks of maternity leave. At least one week must be taken before the birth and at least nine weeks after the birth. The employment contract is suspended during this period and employees are entitled to social security benefits (equal to 82% of the employee’s salary for the first 30 days and 75% of salary afterwards). During this period, the employer is not obliged to make any payments to the employee. Men/fathers are entitled to ten days of paternity leave, seven of which will be paid by the social security system (equal to 82% of a "ceiled" salary); the remaining three days are paid by the employer. This leave must be taken within four months of the child’s birth.
Family Leave and Parental Leave
An employee is entitled to the so-called system of time credit with motif, provided a number of conditions regarding seniority and employment are fulfilled. This system applies in the following cases:
This career-break system enables employees to suspend their employment contract, or to decrease the working hours by one half or one fifth during a period of time. During this period, they will receive a lump-sum monthly allowance from the National Unemployment Office. Other "thematical leave systems" are also provided for employees wanting to take care of their family; parental leave is the most common. It regards a complete suspension of the employment contract for four months, half-time reduction of working time for eight months, or a reduction by one fifth during a period of 20 months to take care of a child up to the age of 12. As from 1 June 2019, there is even more flexibility to take parental leave (eg, flexible planning to be agreed upon between the employer and employee, and the possibility to reduce the working time by one tenth).
A non-competition clause in an employment contract protects the manufacturing and trade secrets of the employer by prohibiting its (former) employee from exercising similar activities for a competitor or as a self-employed individual for a determined period after the termination of the employment contract. This implies that the nature of the employment allows the employee to acquire, directly or indirectly, a knowledge or practice particular to the company, the use of which outside the company could be prejudicial to it.
Under Belgian law, non-competition clauses in employment contracts are governed by Articles 65, 86 and 104 of the Employment Contracts Act.
In Belgium, a distinction must be made between non-competition clauses for employees and sales representatives (salesmen). In non-competition clauses for employees, a distinction is made between the ordinary non-competition clause and the international non-competition clause.
The general non-competition clause
This ordinary (general) non-competition clause can be inserted in an employment contract with a blue-collar or white-collar worker who is not a sales representative.
It will be considered valid only if the following conditions are strictly met:
International non-competition clause
The international non-competition clause can be used only for white-collar workers in companies that have an international field of operations or important economic, technical or financial interests on international markets, and/or their own research service.
All the conditions applicable to the ordinary clauses must be complied with except two:
The specific clause for sales representatives
A specific regime is provided for sales representatives, with the following conditions for the non-competition clause:
Contrary to the general and international non-competition clause, no financial compensation must be provided.
Non-compliance with Validity Requirements
Failure to comply with all these validity conditions results in the clause being null and void. However, such nullity can only be invoked by the employee, not by the employer.
Non-competition clauses can only be effective if the employment contract is terminated after the first six months. However, if the employee is dismissed without cause after this period or if the employee resigns with cause on the part of the employer, the clause will not be applicable.
The non-application criteria differ for the international non-competition clause, which will only be inapplicable when the employment contract is terminated by the employee with cause. This clause can be enforceable when the employment contract is terminated by the employer without cause, and may also apply during the first six months.
The employer is entitled to waive the application of the above-mentioned non-competition clauses within 15 days of the termination of the employment contract. If the non-competition clause is applicable and if an employee violates his or her obligation under this clause, he or she is bound to refund the single lump-sum financial compensation received from the employer. On top of this amount, he or she is bound to pay the employer an amount equivalent to this compensation. A judge may reduce or increase this compensation.
For sales representatives, the situation is different. The penalty may not exceed three months, and must be provided in the non-competition clause.
Under a non-solicitation clause, the employee undertakes not to approach employees of his or her (former) employer after the termination of the employment contract.
Unlike the non-competition clause, the non-solicitation clause is not regulated by the Employment Contracts Act.
In principle, a non-solicitation clause inserted in the employment contract is considered valid. However, in the context of freedom of employment, it may be considered abusive if the benefit to the employer is disproportionate to the loss of opportunity for the employee.
To prevent this, the non-solicitation clause should be limited in time. This is dependent on the nature of the activities, the employees concerned and the scope of the prohibition. Thus, if the non-solicitation clause is “excessive” (ie, too broad or too general), there may be an abuse of rights.
The EU General Data Protection Regulation (GDPR) entered into force in all EU member states on 25 May 2018 and has had a considerable impact on data privacy law in general, and on employee-employer relations in particular.
The GDPR applies to all information related to an identified or identifiable physical person. In an employment context, it is applicable, inter alia, to job candidates, employees, agency workers and self-employed persons. Personal data falling within the scope of the GDPR is usually related to personnel administration, wages, databases of job candidates, attendance records, social documents, etc.
A company has to be able to demonstrate that it is in compliance with the following six general principles:
Besides these general principles, the employer has to make sure that at least one processing condition mentioned in Article 6(1) of the GDPR is fulfilled. The most important ones in the context of an employee-employer relationship are the consent of the person involved, the necessity for the performance of a contract, a legal obligation and the necessity for the purpose of legitimate interests.
If the information concerned is of a sensitive nature (eg, political opinions, religious beliefs and medical records), the processing of it is prohibited unless specific conditions are fulfilled. The processing conditions are stricter in this case. In the context of an employee-employer relationship, the prohibition can be waived if the employer receives the explicit consent of the person involved or demonstrates the necessity of the processing in light of a legal obligation related to employment.
The person whose information is being processed is entitled to:
Data controllers must report any breach to their supervisory authority within 72 hours. The supervisory authorities have a wide range of power, including auditing firms, issuing warnings, and issuing temporary and permanent bans on processing. A company can risk a fine of up to 4% of the annual worldwide turnover or EUR20 million, whichever is the greater. Moreover, an individual can claim compensation to recover material as well as non-material damage.
The GDPR further provides that member states can create additional legislation. As for Belgium, the Act of 30 July 2018 on the protection of individuals with regard to the processing of personal data has implemented the GDPR and regulates some elements in more detail.
On top of the GDPR, specific legislation may be applicable in the employment context, such as the monitoring of electronic communications and the camera surveillance of employees (CBA No 81 of 26 April 2002 concerning the monitoring of electronic communications of employees and CBA No 68 of 16 June 1998 concerning the camera surveillance of employees).
No work permit is required for nationals of the member states of the European Economic Area, Swiss nationals, or certain specific categories of employees (eg, sales representatives domiciled abroad or researchers under certain conditions). All other foreign employees intending to work in Belgium as employees must obtain a (work) permit beforehand from the competent regional public authorities, while self-employed foreigners must obtain a professional card from the jurisdiction of their domicile.
There are different categories of work permits.
No specific registration is required for foreign employees once a work permit is obtained.
A Dimona declaration is a mandatory declaration with the National Social Security Office (NSSO) that needs to be completed by the employer for all its employees. The employer must declare the date of the beginning and the end of the employee’s occupation so that the authorities can easily identify the employees within a company.
Failure to file the Dimona declaration can lead to criminal and/or administrative sanctions.
A Limosa declaration is a mandatory declaration with the NSSO that needs to be completed for foreign employees or self-employed foreigners who come to work in Belgium temporarily or partially.
A Limosa declaration is required each time an individual who does not fall under Belgian social security is temporarily or partially transferred to Belgium for a professional purpose. The declaration needs to be completed by the employer for employees, while self-employed people need to file this declaration themselves or through a representative.
However, depending on the frequency and purpose of the professional travels at stake, some exemptions to the Limosa declaration can be applied (eg, for “small group meetings” and “self-employed business people”).
Failure to file the Limosa declaration may lead to criminal and/or administrative sanctions.
In order to be allowed to participate in the system of collective labour relations in Belgium, a union has to be representative, which means that it must be established for the entirety of the Belgian territory and must be represented in the Central Economic Council and the National Labour Council.
Furthermore, in order to be representative, the union is required to have an inter-professional scope, to represent a vast majority of sectors and categories of personnel in the private and public sector, to have an average of at least 125,000 paying members over the past four years, and to have the defence of employees’ interests as its statutory purpose.
As a result of these strict rules, there are three representative unions in the private sector: the Christian Trade Union (ACV/CSC), the Socialist Trade Union (ABVV/FGTB) and the Liberal Trade Union (ACLVB/CGSLB).
The unions are independent organisations without legal personality.
The role of these unions is threefold:
When (the technical business unit of) a company usually and on average consists of at least 50 employees, a Committee for Prevention and Protection at Work must be established, which essentially has the task of promoting the employees' well-being. When there are at least 100 employees, it is also required to establish a Works Council, which primarily is the body that has to be informed and/or consulted by the employer on various economic and social topics.
The employee representatives who participate in the Committee for Prevention and Protection at Work and the Works Council are elected through social elections, which are organised every four years. In light of the COVID-19 crisis, the social elections that were supposed to take place in May 2020 have been postponed to November 2020.
Moreover, under certain conditions, the unions can request that a Trade Union Delegation is organised within the company. Members of a Trade Union Delegation are elected or appointed, outside the scope of the social elections, after their Union has nominated them.
The Trade Union Delegation is competent to negotiate CBAs with the employer, and to verify whether the employer is compliant with the applicable labour laws. It can also assist individual employees in their discussions with the management.
Employee representatives in the above-mentioned employee representative bodies benefit from protection against dismissal.
CBAs are concluded between one or more employee representative bodies and one or more employer representative bodies or employers. They can be concluded at three levels:
In a CBA, two matters can be treated:
The extent to which a CBA is legally binding depends on the type of CBA and what is specifically stated. In principle, CBAs that have been concluded at a sectoral level are applicable to all the employers belonging to the employer organisations that have signed the CBA. Sectoral CBAs can also be declared generally binding by royal decree. In such a case, the CBA is binding on all employers of that sector, and on all employees employed in that sector.
An employer is not legally obliged to communicate the reasons for dismissal to an employee a priori. During the first six months of an employment contract of indefinite duration, the employer can terminate the employment relationship for any reason.
After the first six months of employment, the employer is obliged to communicate the reasons for dismissal of an employee bound by an employment contract of indefinite duration, in writing, if the employee requests him to do so (a posteriori). If the employer does not respond to this request in a timely manner, he will be held liable to pay an amount corresponding to two weeks’ remuneration. Any reason may be given as a motivation for dismissal, whether economic or technical (eg, the restructuring of a company department), or personal (eg, underperformance). However, employees are not entitled to request the reasons for dismissal in the case of restructurings, when they are employed on a temporary basis or as a student.
Belgian law does not distinguish between performance-related dismissals and dismissals for economic and/or technical reasons.
The procedures differ from the usual for dismissal for serious cause, a collective dismissal or a dismissal of a protected employee.
Special procedures need to be followed in the case of a contemplated collective dismissal (redundancy), which is defined as a mass lay-off on technical and economic grounds involving the following, over a 60-day period:
The legislation on collective dismissals only applies to “companies” that have employed at least 20 employees on average in the calendar year preceding the collective dismissal. For the purposes of this legislation, a “company” is defined as a technical business unit, being derived from economic and social criteria. Such a technical business unit does not necessarily coincide with the legal entity.
Prior to making any decision on the collective dismissal, the employer must inform and consult the Works Council (or the Trade Union Delegation in the absence of a Works Council, or the Committee for Prevention and Protection at Work in the absence of a Trade Union Delegation). In the absence of any employee representative body, the employer must inform and consult the employees directly. Specific information must be provided so that the employee representatives or employees are fully informed. Certain authorities also have to receive specific information. The employer must then organise one or more consultation meetings with the employee representatives. The applicable legislation does not provide for a specific number of meetings to be held. The employer must analyse the questions, arguments and counter-proposals of the employee representatives and provide them with answers (the “Renault” procedure).
There is no specific compelling timeframe for this information and consultation procedure, but it generally takes between four weeks and four months.
Once the employer considers that it has completed the above-mentioned procedure properly, employee representatives are invited to a subsequent consultation meeting, during which the employer will formally confirm its intention to carry out a collective dismissal. On the same day, the employer must also notify the authorities again. No redundancies may be implemented during a 30-day period following this notification (which can be extended to 60 days).
In addition, in the case of a collective dismissal, case law has confirmed that there is no legal obligation to agree on a social plan, but negotiations must be conducted between the parties (unless a plan for early retirement is to be agreed).
Employment Contracts of Indefinite Duration Started after 1 January 2014
The following notice periods apply in the event of termination by the employer:
Different notice periods may apply in specific circumstances (eg, when the employee reaches the statutory pension age, in the case of temporary unemployment and in the case of a recognition as a company in restructuring or in difficulty). Some industries may also deviate from the above-mentioned notice periods.
The following notice periods apply in the event of termination by the employee:
Employment Contracts of Indefinite Duration Started before 1 January 2014
The following notice periods apply in the event of termination by the employer.
The calculation of the notice period (or corresponding severance pay) for these contracts should be conducted in three steps.
The following notice periods apply in the event of termination by a blue-collar worker.
The same three steps should be conducted as in a termination by the employer. For the calculation of the notice period in the first step, a distinction is made between whether the employment contract started before or after 1 January 2012. In both cases, the notice period is often set out in an industry-level royal decree. If this is not the case, the notice period is 14 days in the case of a seniority of less than 20 years, or 28 days in the case of a seniority of more than 20 years.
The following notice periods apply in the event of termination by a white-collar worker.
The same three steps should be conducted as in a termination by the employer. For the calculation of the notice period in the first step, the following principles apply.
If the employment relationship is terminated upon notice, such notice must be given in writing and specify the start date as well as the duration of the notice period and must be served by a bailiff or be sent by registered mail, taking effect on the third working day (ie, all days except Sundays and public holidays) following the day of posting. In the case of a resignation by the employee, the notice must be given by handing over a resignation letter to the employer.
The notice period starts on the first Monday following the week during which it is served on the employee.
Irrespective of the way in which the employment relationship is terminated, written communications to the employee will only be legally binding and, therefore, enforceable if the Belgian language requirements are complied with. The applicable rules and sanctions depend on the location of the relevant employment seat(s) of the company in Belgium.
If the employer does not comply with the formalities applicable in the case of termination upon notice, including if the duration of the notice period is not included in the notice letter, the notice period will be null and void. As a result, the employment relationship will be regarded as terminated without notice and the employee will be entitled to claim severance allowance.
Instead of terminating the employment contract by serving notice on the employee, both parties can terminate the employment contract with immediate effect, upon payment of severance pay in lieu of notice (not on top of notice). If the employment relationship is terminated with immediate effect, the employee will be entitled to a severance allowance in lieu of notice equal to the remuneration that would have been paid during the applicable notice period. The remuneration taken into account includes the employee’s monthly salary and the value of the extra-legal benefits to which the employee was entitled at the moment when the employment contract was terminated.
There are no specific formalities, other than the Belgian language requirements, that also apply in the case of termination by payment of a severance fee.
In the case of termination upon notice, the formalities set out above need to be complied with. If the employment relationship is terminated by the employer for serious cause of the employee, the latter will be dismissed with immediate effect, without notice and without being entitled to a severance allowance. In such a situation, a specific dismissal procedure applies (see 7.3 Dismissal for (Serious) Cause (Summary Dismissal)). As a rule, no external advice or authorisation is required, except in the case of collective dismissal or termination of specific protected employees (eg, members of the Works Council).
Either party may terminate an employment contract without notice and without paying a severance fee if there is serious cause, which is defined as “any fault which makes any further professional collaboration between the employee and the employer definitely and immediately impossible.”
The concept of serious cause is interpreted restrictively by the courts.
A contract may be terminated for serious cause only if the serious cause that justifies such termination has not been known to the terminating party for more than three working days. Moreover, the justification must be notified within three working days of the termination of the contract. This must be done via either a registered letter, a bailiff’s writ or the handing over of a written document, a copy of which must be signed by the recipient (the signature will only function as proof of the receipt). Only the reasons mentioned in the letter may be invoked to justify the termination. These reasons must be clearly described so that a court can evaluate the case if there is a dispute.
The dismissal has an immediate effect. The employee loses his or her employment and is not entitled to any compensation. There are, however, other direct sanctions: the dismissed employee loses his or her seniority and possibly his or her rights under the company pension plan, and he or she will be excluded from unemployment benefits for a certain period.
If the reasons invoked are not serious enough, or if the necessary delays and formalities have not been respected, the terminating party owes the other party compensation, equal to the severance allowance due in the case of immediate termination of an employment contract of indefinite duration. The contract will remain terminated.
Employers are entitled to settle claims with employees out of court at any time, but a settlement cannot be agreed before the employment contract has been terminated. Any waiver made by the employee and contained in any such settlement signed before the actual termination would be void.
Obviously, parties can also terminate the employment contract by mutual consent.
There are no formal requirements for enforceable releases, but all termination agreements between an employer and employee must comply with the specific language requirements.
In some circumstances, a release will be enforceable only after the parties have taken a waiting period into account. This is the case, for instance, for indemnities related to non-competition undertakings. To waive a non-competition indemnity validly, the release can only be concluded 15 days after the termination. The same applies to employees’ representatives in the Works Council and the Committee for Prevention and Protection at Work (employees protected against termination), for which a release (waiver of protection indemnity) will only be valid after a waiting period of 30 days following the termination (the time during which a protected employee can ask for his or her reintegration within the company).
There are different categories of protected employees in Belgium:
The scope of the protection depends on the type of protected employee involved.
Employee representatives benefit from protection against dismissal.
Members of, or Candidates for, the Works Council and the Committee for Prevention and Protection at Work
The Act of 19 March 1991 provides very detailed and complex rules to be observed in the case of a dismissal of elected and candidate representatives of the Works Council or Committee for Prevention and Protection at Work. These employees can only be dismissed for serious cause and upon the prior written approval of the court, or for economic/technical reasons approved beforehand by the competent joint committee (or court). In both cases, a specific procedure must be followed, depending on the reason.
In any event, a special indemnity will be due, equal to two, three or four years’ remuneration depending on whether the employee has been employed for fewer than ten years, more than ten years but fewer than 20 years, or more than 20 years. This indemnity cannot be cumulated with the normal severance (the employee can choose the highest indemnity, which will typically be this special indemnity).
If an employee representative is dismissed within the period of protection for any other reason, or when economic/technical reasons or the dismissal for serious cause is not approved, the protected employee or his or her union may file a request by registered letter to be reinstated in the company. This must be done within 30 days of the notification of the termination with notice or the date of termination without notice, or within 30 days of the presentation of the candidates if the termination precedes the announcement of the dismissed employee’s candidacy.
If the employer accepts the request for re-integration, the employee will be reinstated and will receive the salary due for the period between the dismissal and the re-integration. No further compensation will be due.
If the employer does not accept the re-integration request, the employee will be awarded an indemnity that is equal to the wage due for the remaining part of the four-year term of his or her mandate following the date of dismissal.
Trade Union Delegates
Members of the Trade Union Delegation also benefit from special protection against dismissal, and may not be dismissed for reasons related to the exercise of their mandate.
Unless the employer intends to dismiss a delegate for serious cause, he or she must previously inform the Trade Union Delegation, as well as the union that has nominated the delegate, of his or her intention to dismiss the delegate. This notification must be sent by registered mail. In the case of a dismissal for serious cause, the union must be informed immediately but no prior notification is required.
The union has seven days to reject the validity of the proposed dismissal by registered letter. Failure to do so will be considered as an agreement with the dismissal. In the case of a timely rejection, any party may submit the case to the conciliation bureau of the joint committee. During this procedure, the delegate cannot be dismissed. The bureau has 30 days to reach a unanimous decision, failing which the case will be referred to the court.
Failure to observe the above-mentioned procedure or when the ground for the dismissal has been found to be invalid by a final decision of the conciliation bureau or the court, or when the serious cause has not been accepted by the court, will result in the employer having to pay an indemnity equal to the delegate’s gross remuneration of one year. This can be cumulated with the severance but not with the special indemnity in the case of violation of the protection enjoyed by the representatives in the Works Council or Committee for Prevention and Protection at Work.
Since 1 April 2014, there has been a duty to motivate dismissals. The main principles are that a dismissed employee has the right to learn the concrete reasons that have led to his or her dismissal, and that an employee who is the victim of a manifestly unfair dismissal can claim additional compensation.
A manifestly unfair dismissal is defined as one that is not based on reasons that relate to the behaviour or capabilities of the employee, or that does not relate to the operational needs of the company or services, and that a normal and reasonable employer would never have decided to carry out.
An employee is entitled to require the company to motivate the dismissal formally, which it must do by registered mail within two months of his or her dismissal. Failing to comply with such a request results in the payment of an additional indemnity equal to two weeks’ remuneration.
Further, the employee may challenge his or her dismissal as being “manifestly unreasonable”, in which case the employer must prove that the dismissal is motivated by (i) his or her behaviour, (ii) his or her capabilities, or (iii) the economic necessities of the company. If the dismissal is found to be manifestly unreasonable, the court may award an additional indemnity of 3-17 weeks' remuneration (depending on the opinion of the court with respect to the degree of unreasonableness of the dismissal). Case law shows that courts are reluctant to consider dismissals as being manifestly unreasonable and that, if they do, an additional compensation of eight to ten weeks is awarded on average.
The three 2007 Belgian Anti-Discrimination Acts – applicable in the private and public sectors, irrespective of the status of the person (employee or self-employed) – provide protection against anti-discrimination on the following limitative grounds: age, sexual orientation, religion or beliefs, disability, civil status, birth, wealth, political beliefs, union membership, language, current or future health status, physical or genetic characteristics, social descent, nationality, race, skin colour, descent, national or ethnic origin, gender, pregnancy, birth or motherhood, and change of gender.
Direct discrimination (distinction based on one of the grounds mentioned in the Anti-Discrimination Acts) and indirect discrimination (distinction based on an apparently neutral criterion, but which in practice leads to discrimination on the grounds mentioned in the Anti-Discrimination Acts) are prohibited. As from 9 March 2020, additional grounds for direct discrimination have been introduced in the Gender Act of 10 May 2007. This legislative amendment equates a direct distinction on the basis of breastfeeding, adoption, medically assisted reproduction, gender characteristics and fatherhood or co-motherhood with a direct distinction on the basis of gender.
Difference in treatment based on the grounds above will not be unlawful if the difference in treatment is objectively and reasonably justified by a legitimate aim. Specifically for employment issues, discrimination can also be justified if a characteristic constitutes an essential and determining professional requirement due to the nature of the professional activity or the context in which it is performed (provided that the objective is legitimate and the requirement is proportionate to that objective).
In principle, the claimant bears the burden of proof.
The Anti-Discrimination Acts, however, provide that the burden of proof shifts to the defendant (who will have to prove that there was no discrimination) if the claimant can provide “prima facie” evidence of discrimination by bringing forward facts that lead to a “suspicion of discrimination”. Examples of facts that may constitute prima facie evidence of discrimination are set out in the Anti-Discrimination Acts.
A mere allegation of discrimination is not sufficient to shift the burden of proof.
The wronged employee can claim a lump-sum indemnity equal to six months’ gross salary (this amount can be lowered in certain circumstances) or the real damages suffered (provided that he or she can prove the real damages).
The Anti-Discrimination Acts also provide for additional civil sanctions.
The clauses of an agreement that are in breach of the Anti-Discrimination Acts are partially null and void (ie, a levelling-up of the conditions should occur for the discriminated employee).
A wronged employee may also bring an action for injunction before a court against the discriminatory action (judges can award the publication of their decisions and/or impose penalty payments in this respect).
In addition, when an employee is dismissed and if his dismissal was discriminatory, he can ask for his reintegration into the company.
Finally, an employee who introduces a complaint for discrimination is protected against sanctions/negative measures from the employer that are related to the complaint (within 12 months of the complaint of the employee, the employer bears the burden of proof that the measure/sanction has nothing to do with the complaint).
In theory, criminal sanctions may also apply for breaches of the Anti-Discrimination Acts.
Employment Forums and Representation in Court
Employer-employee disputes are in the first instance resolved before the competent labour tribunal, and can be appealed before the competent labour court of appeal. Cases are allocated, both in first instance and in appeal, to a three-judge panel made up of one professional judge and two non-professional judges with experience in employment/labour law matters (so-called social judges). In social security and social assistance cases, a labour public prosecutor will also take part in the proceedings. His or her role is similar to that of a public prosecutor in criminal cases.
For disputes concerning employment contracts, the Judicial Code obliges the parties to try to reach an amicable settlement before going to court.
Proceedings can be introduced by filing a writ of summons (dagvaarding/citation) or a petition (verzoekschrift op tegenspraak/requête contradictoire).
The language of the proceedings is determined by the domicile of the defendant, and the competent labour court is decided by the location where the activities of the company are carried out.
Aside from the possibility of being represented by an attorney, employees can also be represented by their spouse, a blood relative or a related person (provided that he or she has a written mandate and special permission from the judge). Moreover, employees can also be represented by a union representative upon presentation of a written mandate.
The scope of the Belgian class action device is confined to certain fields, such as competition, consumer protection, and product safety laws. Further, only consumers or SMEs who suffered common damages as a result of a breach of those laws can bring class actions. Hence, workplace disputes in Belgium cannot be brought as class actions. However, it cannot be excluded that the scope of the Belgian class action device will be extended to include (some) employment disputes in the future (similar to France, which has allowed for employment discrimination cases to be brought as “group actions” since 2016).
For the time being, Belgian legislation provides for a limited number of alternative ways to deal with cases of mass harm in the workplace.
According to Belgian employment law, arbitration is possible.
As a rule, pre-dispute arbitration agreements are null and void. An exception is made for employees who cumulatively fulfil the following conditions:
Pre-dispute arbitration agreements with employees who fulfil these conditions are enforceable provided that (the clause containing) the pre-dispute arbitration agreement has a valid object and a valid cause, and that the parties are capable and have consented.
A prevailing party (whether employee or employer) will be awarded attorney's fees. However, Belgian law provides for lump-sum amounts in this respect. The actual amount depends on the value of the case (determined by the amount claimed by the claimant). When the case cannot be valued, different lump-sum amounts apply.
The COVID-19 pandemic, backed up with technological innovations and many ad hoc legislative initiatives, has unquestionably changed the employment law landscape and HR practice within Belgium. Teleworking has become the norm since 18 March 2020. However, the government decided that the lockdown would be phased out as from 4 May 2020. In the meantime, a new mindset has emerged. More than ever, economics and health must be combined and legally creative solutions are ubiquitous.
This chapter looks at three main areas of development, focusing on where Belgian employment law is going through right now as well as at the short-term and long-term perspectives.
Following its neighbouring jurisdictions, the Belgian government introduced several measures in focusing on the prevention of the spread of the COVID-19 virus. As a direct result, employers are facing significant challenges implementing health and safety measures on the one hand and dealing with a drop in demand or supply on the other hand. At the same time, many ad hoc measures enacted by the government are frequently being used in order to deal with the latter in a cost-efficient manner.
Reform of the workplace
One of the newest litigation-prone areas today comprises health and safety at work.
Many companies are dealing with social inspectors scrutinising whether social distancing and hygiene are sufficiently guaranteed. When failing to comply or when (technical) adaptations are not sufficiently implemented in practice, employers can face several sanctions, including the (temporary) closure of the workplace.
Royal and Ministerial decrees have been issued in which governmental orders regarding health and safety at the workplace are laid down. On top of that, a generic guide was drawn up by the social partners that aims to give employers practical guidelines on how to organise the return to the workplace. The guide deals with social distancing, organisational measures and collective protection measures. The generic guide applies to all industries commonly. Specific guides may be issued per sector. It appears from practice that although this document is informative and non-binding, social inspectors heavily rely on the guide and use this document as a benchmark when applying sanctions.
Following their practice, it seems that personal hygiene and social distancing are key: employers should ensure the necessary materials are available for employees to wash their hands (hand soap, paper towels, hydroalcoholic gels, disposable tissues, etc) as well as the necessary reminders to employees of this obligation. Employers should organise the work in such a way that the 1.5-metre distance rule may be observed as much as possible. Where the 1.5-metre distance is threatened, collective protection measures (protective shields, partitions, markings on the floor) take priority over the provision of personal protection measures (gloves, masks, protective clothing).
Accelerated employment decisions
Another trend comprises the acceleration of long-scheduled changes, especially in companies suffering economic losses. Companies are currently looking for solutions that are future-proof and sustainable rather than focusing on massive lay-offs and bankruptcy. Employers are increasingly inclined to conclude agreements, so-called smart deals, with unions and employees in order to avoid major restructurings. Unions, in their turn, are willing to make compromises in order to avoid a fatal bankruptcy scenario.
Among many policy arrangements, a vast increase and acceleration of individual dismissal decisions is noticed in practice. In doing so, it is important that employers take the applicable rules into account.
First, new rules apply for the termination of an employment contract of an employee who is benefiting from the furlough system of temporary unemployment. If an employee comes within the ambit of the temporary unemployment "CORONA" and the employer terminates the contract, the days of temporary unemployment as from 22 June 2020 will suspend the notice period. In the case of notice given during the period of temporary unemployment for economic reasons, the notice period will only start to run when the employee resumes work. In the case of notice given prior to the period of temporary unemployment for economic reasons, the notice period shall be suspended.
Second, the employee always has the right to know the concrete reason(s) that led to the dismissal. The reasons do not necessarily have to be communicated on the initiative of the employer. It is up to the employee who wishes to know the reasons for the dismissal to take the initiative and send a written request to the employer. If the employer does not communicate the concrete reasons in a timely manner, this employee can claim a fixed civil penalty corresponding to two weeks' gross remuneration.
In addition, the dismissal may not be manifestly unreasonable. If the employee believes that his or her dismissal is manifestly unreasonable, he or she may appeal to the labour court. In the event of manifestly unreasonable dismissal, the court may impose a lump-sum sanction on the employer consisting of a payment to the employee of a compensation corresponding to at least 3 weeks’ and a maximum of 17 weeks' gross remuneration.
Finally, the employee could try to make a claim based on Belgian discrimination rules and legislation; for example, if an employee is dismissed because of reasons relating to his or her health. In doing so, the employee can choose between (i) a lump sum or (ii) the actual damages suffered. The most common claim comprises a lump-sum compensation that amounts to the employee’s gross remuneration of a maximum six months.
Ad hoc measures
Finally, also in line with its neighbouring jurisdictions, the Belgian government has enacted many pieces of ad hoc legislation dealing with the new reality. These trends are novel and are often heavily relied on by employers as cost-efficient ways to tackle the direct effects of the pandemic.
Measures in critical sectors
The government offered various measures that apply specifically to the so-called critical sectors affected by the COVID-19 crisis through Ministerial Decree No 14 of 27 April 2020 and its adaptations.
The Decree increases the number of voluntary overtime hours to be performed by employees in the sectors concerned. There will be a tax exemption for these overtime hours on condition that it concerns overtime worked by an employee on a voluntary basis, with a maximum of 220 overtime hours per year and overtime performed for a certain period.
The Decree also allows successive fixed-term employment contracts to be concluded for a period of three months in the critical sectors, without this leading to the creation of an employment contract of indefinite duration. This allows employers in the critical sectors to recruit additional staff in a very flexible manner. Employees who are currently temporarily unemployed can, for their part, start working in these sectors in a flexible manner.
Moreover, employers from any sector will be able to post their permanent employees to employers in the critical sectors in a flexible manner. There is no obligation to obtain prior consent from the trade union delegation, nor from the labour inspectorate.
The conditions must be laid down in advance in a signed written document and the principle of equal pay for equal work must be guaranteed. Both employers then become jointly and severally liable for the payment of the social security contributions, salary, allowances and benefits for the employees concerned.
Extension of corona parental leave
As many parents were compelled to telework while having to look after their children, the Belgian government provided for the possibility of corona parental leave. Ordinary parental leave allows an employee to suspend his or her employment contract and receive an allowance paid by the National Office for Employment. To allow the use of this system in the special circumstances linked to COVID-19, the government has provided for a specific regime with a certain number of derogations from the ordinary parental leave regime.
Temporary reduction of working time
A final commonly used regime comprises the possibility for companies undergoing restructuring or experiencing difficulties to reduce working time by a quarter or a fifth for a period of one year for all employees (or a category of employees). An employer who makes use of this measure receives a fixed target group reduction during the period of the reduction in working hours. The reduction in working time implies that the employee's salary is reduced in accordance with the percentage reduction. In order to compensate for this wage loss, a wage compensation must be provided by the employer.
Now that employers are restarting their activity, several legal questions are on the radar of many companies. Employers are therefore dealing with how best to prepare their company for the resumption of activities, while respecting the rules of health and safety. The uncertainty that goes hand in hand with the development makes way for the following trends expected in the short term.
Continuous use of the furlough system
Under the system of force majeure due to the COVID-19 outbreak, employees working for employers facing this force majeure can be put under a system of temporary unemployment. Eligible employees under the system of temporary unemployment due to the COVID-19 outbreak receive wage subsidies of 70% of their average wage and an additional daily premium. It is possible for these employees to alternate days of unemployment and working days (during which they receive their normal wage). The unemployment must always concern a full day's work.
Both white-collar and blue-collar workers can claim the above-mentioned benefits as long as they comply with the conditions for eligibility. These conditions currently comprise that for the days of unemployment, the employee concerned must (i) be able to work, (ii) be without income, (iii) receive no replacement income and (iv) carry out no other activity. Finally, the employer and employee must file the necessary forms, which can be done under a simplified administrative procedure.
The employer may invoke temporary unemployment due to force majeure in many cases; for example, if supplies are no longer assured, if the employee is stranded abroad due to a quarantine measure or if there is an obligated closure of the company.
After summer, it is expected that employers will continue to make use of the furlough system, although with altered conditions. A move to the system of economic force majeure will be made in the short term. As a result, a continuous impact on reward policies is anticipated (see below under Reward systems).
Monitoring of employees
When preparing for a return to the workplace, employers are responsible for the welfare policy applicable. Employers are therefore taking the necessary measures to minimise the risk of contamination for employees. Against this backdrop, several new trends have developed shaped by numerous legal and political initiatives supporting the new reality.
In this regard, however, Belgian law is very strict on the rules applicable to testing and exercising certain levels of control over employees. First, an employer cannot oblige their employees to consult the employment doctor before resuming work. An examination upon resumption of work is only possible if the employee performs a function that requires health supervision and he or she was absent for four uninterrupted weeks due to illness, accident, pregnancy or a disorder.
Moreover, employers cannot oblige their employees to submit a certificate of recovery when they return to work. A company can also not impose a COVID-19 test purely based on the employer’s authority. The processing of health data is prohibited under the EU's General Data Protection Regulation (GDPR) unless an exception is made by law or if the person concerned gives specific, free, informed and explicit consent. In the relationship between an employee and the employer, the employee's consent is rarely “free”, given the hierarchical context and the fact that an employee may be under great pressure to consent. In the absence of a specific legal basis, an employee cannot therefore be forced to undergo a test.
As a result, employers will increasingly notify the occupational physician if they consider that an employee's state of health increases the risks associated with the work post, or if they want to monitor suspicious cases. The occupational physician will then determine whether a medical examination is necessary for this employee.
The Belgian government has decided to postpone the social elections. Due to the large physical absence of employees on the workfloor, the proper organisation of social elections and the continuation of the current procedure became impossible.
Currently, the new electoral period will take place from 16 to 29 November 2020. Depending on how the coronavirus crisis develops, this period will be confirmed or possibly adapted during the summer of 2020.
If the elections take place in November 2020, a new protection period (which creates a protection against dismissal for candidate employees) will apply from mid-August until the beginning of November 2020. During this period, candidates will be protected against dismissal under certain conditions.
Telework has been around for a long time already, known as a form of work organisation in which, using information technology, work that could be carried out at the company's site is carried out away from that site.
Two distinct forms of telework can be distinguished: structural telework and occasional telework. Since the lockdown of March 2020, occasional telework was the norm among all employers whose employees could perform their tasks from home. Occasional telework was organised following the Act of 5 March 2017, as exceptional telework in the event of force majeure; ie, an unforeseen situation beyond their control. Inherently, this exceptional telework trend was always set up with an inevitable return to work in mind.
However, a long-term trend has been emerging with structural telework as a new preferred form of organisation. Structural telework has a different legal background, mainly regulated by Collective Labour Agreement No 85. It concerns telework that is carried out on a constant, regular and permanent basis.
As companies are increasingly opting for a permanent regime, with, for example, a working from home schedule of four days a week, the application of specific rules in creative manners is seen in practice.
First, drawing up a written agreement is mandatory and necessary for each individual teleworker. This agreement must be executed at the latest when the structural teleworking commences. The agreement must contain a number of obligatory clauses; for example, arrangement for the reimbursement by the employer of costs that related to the use of equipment, the connections and communication. In so far as the employee uses his or her own equipment, the costs associated with teleworking must be borne by the employer. Moreover, the times or periods at which the employee must be available to be contacted and by what means or the times at which the employee can call on technical support are compulsory as well.
The current legal framework is also specifically designed such that that the rules on welfare at work shall apply in full to these teleworkers at home. In any case, the employer continues to bear final responsibility for the health and safety of the teleworker. In order to fulfil this obligation, the internal prevention service should be able to have access to the teleworker's workplace. If the work is carried out in an inhabited area, the workplace is, of course, not simply freely accessible. The visit must then be announced in advance and must be agreed to by the employee. Without prior consent, the fundamental right to the inviolability of the home, as laid down in Article 15 of the Belgian Constitution, would not be respected.
Apart from that, employees are required to comply with the relevant regulations on the company's intranet. Specifically, it is common that the employer requires the employee to meet a number of criteria. The employee must "have the ability to carry out his/her tasks in the same way as in the company, both at a technical level and in terms of office design, health and safety". In practice, such requirement is only workable if the employee concerned has an office at home that is separated from the rest of the house to determine whether teleworking is possible at all. On top of that, following the current applicable rules, the employer must ensure data protection and measures to prevent a feeling of isolation.
Many different legal questions are expected to arise if this long-term trend persists. How does “working from home” harmonise with the traditional legal notion of business hours? Moreover, how can employers ensure that employees working from home do not perform their activities elsewhere; for example, a holiday destination or a location that is technically not in line with IT and GDPR requirements. Lastly, how will the training and education of young employees be organised and how will teamwork evolve as a necessary element of many businesses. New company policies tackling these practical questions are already in the making.
As explained above, employees who come within the ambit of the system of temporary unemployment are eligible for wage subsidies. As from 13 March 2020, a flexible application of the definition of force majeure was accepted by the National Unemployment Office and most situations of temporary unemployment caused by the pandemic have been considered force majeure, even if, for example, it was still possible to employ certain employees for a few days. As the definition will become more stringent, conflicts are expected to arise regarding the thresholds to apply, such as a drop in turnover, production or customers.
Many employers have been wondering whether they can grant their employees who are unable to work under the COVID-19 measures a premium or a supplement while avoiding social security contributions.
Currently, the general principle under Belgian law has been confirmed to continue to apply. Following this principle, it is possible to grant a supplement to wage subsidies without having to pay social security contributions. The National Unemployment Office stipulates as the only condition regarding the amount of the supplement that it may not result in the employee receiving net more than the employee would have received if the employee had worked.
The application of this general principle is giving rise to a long-term trend under which reward systems and policies are being rewritten. When building in the payment of such supplements, employers must adhere to certain rules. The employer must treat all employees of the same category equally. This can be accomplished by compensating up to a certain percentage of the net wage of the employee concerned or by paying a lump sum to all employees concerned, bearing in mind that even workers in the lowest salary range may not receive more than they would have received if they had worked.
Currently, the National Unemployment Office states that it fully understands how decisions during the first months of the pandemic had to be taken quickly and therefore allows that if supplements granted are too high, the employer may compensate this by reducing the supplements for the following months. As the long-term trend continues, the Belgian authorities will become increasingly stringent.
Apart from supplements to the wage subsidies in the context of unemployment allowances, a shift is being made in reward policies considering the compensation of targeted employees in certain sectors. Industries such as pharmaceuticals or online businesses have already been rewarding employees for performing overtime and additional work. It is expected that employers will look for new cost-efficient ways to compensate their employees for these novel efforts. A draft law has, for example, already introduced the use of a so-called consumption voucher. Employers will have the possibility to grant employees a voucher of up to EUR300 in the hospitality, sports and culture sector. The employee can then use the voucher, for example, for a fitness subscription or a ticket for a musical. The draft law already confirms the (i) tax-free and (ii) deductible nature of the voucher.
New balances will be sought to be found between health and economics as companies who can transform their HR policy taking the necessary protection mechanisms into account are able to attract and retain employees and are able to deal with the new reality. In doing so, multinational companies are facing conflicts in trying to apply global policies in offices worldwide while looking for cost-efficient opportunities offered by local governments. As a result, having a unified approach worldwide will no longer be viewed as advantageous overall, both from a cost-efficient and HR perspective.