Employment 2022

Last Updated July 06, 2022

Belgium

Law and Practice

Authors



Linklaters is recognised as a market-leading law firm, with a presence in the Belgian market dating from 1969 and with offices in Brussels and Antwerp. Its wide offering of specialised practices, ranging from corporate and banking to employment and tax, all hold a market-leading position recognised by international directories and awards, making Linklaters unique among law firms in Belgium. The employment and incentives team guides its clients through major corporate restructurings and cutting-edge collective or individual employment matters. It has also developed unique expertise in advising on incentive schemes. The main areas of practice include individual termination, collective dismissals and closure of undertakings, individual dismissals including protected employees, discrimination issues, employment benefits and pension plans, incentives, employee representative bodies, expatriates, social security, union actions and strikes, national and cross-border mergers, data privacy, labour litigation and general employment law advice, including in EU law.

Only a limited number of changes in employment laws have been enacted in the last 12 months, as detailed below.

  • Parental leave for fathers will be extended to 20 days as from 1 January 2023.
  • Collective bargaining agreement (CBA) No 90/4 has been adopted, which modifies CBA No 90 on non-recurrent, result-related benefits. The CBA provides for a new template CBA and adhesion acts to be used, as well as a number of additional conditions in case certain objectives are included in the plan. 
  • Labour deal: with the aim of improving the work-life balance of employees and to encourage more individuals into the labour market, the Belgian Federal Government has recently agreed on a number of measures in the “Labour Deal”. Some key topics of the Labour Deal are the four-day work week, the right to disconnect, redeployment measures for one third of the notice period and the social status of platform workers.
  • The "Back-to-Work pathway" was introduced on 1 January 2022. This is a pathway that was started by the "Back-to-Work Coordinator" in consultation with an incapacitated individual and the consulting doctor, if reintegration can be considered for this individual. The aim of this pathway is to reintegrate, where possible, incapacitated individuals who have received long-term sickness or invalidity benefits from the health insurance fund, in function of their residual capacities.
  • Responsibility contribution: companies with an average of at least 50 employees will have to pay a responsibility contribution equal to 0.625% of the wage bill, where there is an excessive inflow of employees into invalidity. The concrete details of this responsibility contribution will be specified in a royal decree which is yet to be adopted.

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. 

Duration

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 seasonal employment, for a training period, for student work, etc. There are different requirements for different contracts.

An employment contract for an 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 a definite duration ends on 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:

  • a maximum of four successive contracts may be entered into;
  • the minimum duration of each contract is three months; and
  • the total duration of the successive contracts may not exceed two years.

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.

Official Form

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.

Language

According to the legislation on the use of languages in employment relationships, all social documents (documents addressed to personnel) must be drafted in French, Dutch or German; documents in the wrong language may be considered null and void. 

Terms

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.

Contractual Freedom

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 CBAs (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 CBA (eg, in 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 them 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.

Overtime

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 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.

Minimum Wage

Parties are free to negotiate the salary package, provided that mandatory minimum wages are complied with. These are fixed per sector and included in CBAs, 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 EUR1,806.16 per month for employees who are 18 years or older (2021).

13th Cheque

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.

Performance Bonuses

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 an employee's salary for the purpose of calculating their entitlement to vacation pay (see 2.5 Other Terms of Employment).

Index Mechanism

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.

Maximum Margin

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 (0.4% for 2021–22); the latter is done for the preventative securing of Belgium's competitiveness. 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.

Leave

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 about double 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.

Work Incapacity: Illness and Invalidity

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.

Short Leave

The employee has the right to be absent from work without loss of their 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. In the case of twins or a multiple pregnancy, maternity leave is in principle 17 weeks, but can be extended to 19 weeks. 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 15 days of paternity leave, 12 of which will be paid by the social security system (topped salary at EUR160,85 per day for 2022); the remaining three days are paid by the employer. This leave must be taken within four months of the child’s birth.

Time Credit with Motif

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:

  • care of a child until the age of eight;
  • palliative care;
  • care of a family member who is seriously ill;
  • care of a disabled child until the age of 21;
  • care of a child who is seriously ill and belongs to the family; and
  • since October 2019, recognised carers.

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 in taking 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-compete clause in an employment contract protects the manufacturing and trade secrets of the employer by prohibiting its (former) employee from carrying out 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, knowledge or practice particular to the company, the use of which outside the company could be prejudicial to it.

Under Belgian law, non-compete 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-compete clauses for employees and sales representatives (salesmen). In non-compete clauses for employees, a distinction is made between the ordinary non-compete clause and the international non-compete clause.

Validity Requirements

The general non-compete clause

This ordinary (general) non-compete 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:

  • it can apply to an employee whose annual remuneration exceeds EUR36,785 (for those functions referred to in a CBA) or EUR73,571 (for any function except those excluded by a CBA) – it should be noted that compliance with this remuneration requirement is considered at the expiry of the employment contact;
  • it must be agreed upon in writing (with respect to the Belgian mandatory rules on the use of languages);
  • it must refer to activities similar to and/or competitive to the employer, and it must be restricted to similar activities as exercised by the employee for the employer;
  • it must be limited to the territory where the employee can effectively enter into competition with the employer, taking into consideration the nature of the business and the company’s scope of action; in any case, it cannot be extended outside the national territory (ie, Belgium);
  • it must be limited to 12 months from the termination of the employment contract; and
  • it must provide for single, lump-sum financial compensation to be paid by the employer, which amounts to (at least) half of the gross salary of the employee corresponding to the effective application period of the prohibition.

International non-compete clause

The international non-compete 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 application of the clause is not limited to the national territory; in the absence of more precise legal provisions in this respect, one should take into account the scope of operations of the company and specify the names of the countries in which the clause is to be applied; and
  • the prohibition’s duration may exceed 12 months as of the contract’s termination.

Specific clause for sales representatives

A specific regime is provided for sales representatives, with the following conditions for the non-compete clause:

  • it can apply to sales representatives whose annual remuneration exceeds EUR36,785;
  • it must be agreed upon in writing (with respect to the Belgian mandatory rules on the use of languages);
  • it must be restricted to similar activities as exercised by the employee for the employer;
  • the clause must be limited to the area in which the sales representative performed his or her activities (it can exceed the territorial limits of Belgium); and
  • the duration is limited to 12 months from the contract’s termination.

Contrary to the general and international non-compete clause, no financial compensation need 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.

Enforcement Requirements

Non-compete 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-compete 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-compete clauses within 15 days of the termination of the employment contract. If the non-compete clause is applicable and if an employee violates their obligation under this clause, they are bound to refund the single lump-sum financial compensation received from the employer. On top of this amount, the employee 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-compete clause.

Under a non-solicitation clause, the employee undertakes not to approach employees of their (former) employer after the termination of the employment contract.

Unlike the non-compete 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.

General Principles and Processing Conditions

A company has to be able to demonstrate that it is in compliance with the following six general principles:

  • personal data must be processed in a lawful, fair and transparent matter;
  • personal data must be collected for specified, explicit and legitimate purposes, and cannot be processed in an incompatible manner (with exceptions for public interest, scientific, historical or statistical purposes);
  • personal data must be limited to what is necessary in relation to the purposes for which it is processed;
  • personal data must be accurate, and kept up to date;
  • personal data should not be kept in an identifiable format longer than necessary; and
  • personal data should be kept secure.

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.

Sensitive Information

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:

  • access to information that is being kept on them;
  • ask for rectification of incorrect information;
  • demand the application of their "right to be forgotten";
  • ask for a restriction of the processing;
  • demand the application of their right of "portability" of information; and
  • object to the processing.

Reporting of Breaches

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.

Additional Legislation

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.

  • Single permit – since 3 January 2019, non-EU workers coming to Belgium for longer than 90 days need to apply for a single permit. The procedure entails a combined application process for the residence and work permit.
  • Single permit for indefinite duration – this is not limited in time and is granted to foreign workers who can prove that they have worked for four years with a valid work permit during the five years directly preceding the application.
  • Work permit for short stays – this is limited to a maximum period of 90 days and is granted to the worker who works exclusively for one employer.

No specific registration is required for foreign employees once a work permit is obtained.

Dimona Declaration

A Dimona declaration is a mandatory declaration with the National Social Security Office (NSSO) that needs to be completed by an employer for all its employees. The employer must declare the starting date and end date 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.

Limosa Declaration

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:

  • the representation of employees in companies and in labour and wage negotiations;
  • the defence of the interests of employees, both within companies and before the labour courts; and
  • handling the payment of certain social security benefits as an authorised agent of the state.

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 took place between 16 and 29 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 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:

  • inter-sectoral CBAs (at the level of the National Labour Council), which are published on the website of the National Labour Council;
  • sectoral CBAs, which are published on the website of the Federal Public Service Employment, Labour and Social Dialogue; or
  • company-level CBAs.

In a CBA, two matters can be treated:

  • the individual and collective relations between employer(s) and employees in companies or an industry; and
  • the rights and obligations of the contracting parties (ie, the employers or employer’s organisations and the unions), such as the guarantee of social peace on the issues dealt with in the CBA.

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.

Communication of Reasons for Dismissal

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 them to do so (a posteriori). If the employer does not respond to this request in a timely manner, they 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.

Collective Dismissal

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:

  • at least ten employees in companies employing on average between 20 and 99 employees in the calendar year preceding the collective dismissal;
  • at least 10% of the employees in companies employing on average between 100 and 299 employees in the calendar year preceding the collective dismissal; and
  • at least 30 employees in companies employing on average 300 employees or more in the calendar year preceding the collective dismissal.

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.

Employee consultation

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:

  • < 3 months' seniority – 1 week notice period;
  • ≥ 3 months and < 4 months – 3 weeks;
  • ≥ 4 months and < 5 months – 4 weeks;
  • ≥ 5 months and < 6 months – 5 weeks;
  • ≥ 6 months and < 9 months – 6 weeks;
  • ≥ 9 months and < 12 months – 7 weeks;
  • ≥ 12 months and < 15 months – 8 weeks;
  • ≥ 15 months and < 18 months – 9 weeks;
  • ≥ 18 months and < 21 months – 10 weeks;
  • ≥ 21 months and < 24 months – 11 weeks;
  • ≥ 2 years and < 3 years – 12 weeks;
  • ≥ 3 years and < 4 years – 13 weeks;
  • ≥ 4 years and < 5 years – 15 weeks;
  • ≥ 5 years and < 20 years – plus 3 weeks per started year of seniority;
  • ≥ 20 years and < 21 years – plus 2 weeks per started year of seniority; and
  • ≥ 21 years – plus 1 week per started year of seniority.

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 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:

  • < 3 months' seniority – 1 week notice period;
  • ≥ 3 months and < 6 months – 2 weeks;
  • ≥ 6 months and < 12 months – 3 weeks;
  • ≥ 12 months and < 18 months – 4 weeks;
  • ≥ 18 months and < 24 months – 5 weeks;
  • ≥ 2 years and < 4 years – 6 weeks;
  • ≥ 4 years and < 5 years – 7 weeks;
  • ≥ 5 years and < 6 years – 9 weeks;
  • ≥ 6 years and < 7 years – 10 weeks;
  • ≥ 7 years and < 8 years – 12 weeks; and
  • ≥ 8 years – 13 weeks.

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.

  • First, the calculation must be made on the basis of the seniority accrued up to 31 December 2013, under the rules previously applicable in the case of termination by the employer.
    1. For blue-collar workers, the employer must determine which notice period was applicable on 31 December 2013 (at industry or company level).
    2. For white-collar workers, the notice period depends on the worker’s gross annual remuneration (including fringe benefits) on 31 December 2013.
    3. For the “lower” white-collar workers (≤ EUR32,254 in 2013), the notice period is equal to three months per started period of five years’ seniority.
    4. For the “higher” white-collar workers (> EUR32,254 in 2013), the notice period is equal to one month per commenced year of seniority, with a minimum of three months.
  • Second, the calculation must be based on the seniority accrued for the period after 1 January 2014, under the new rules applicable in the case of termination by the employer. The seniority of the employee is therefore reduced to zero on 1 January 2014 for the application of step 2, and the applicable notice period is determined on the basis of the list above. The status of blue-collar or white-collar does not make any difference.
  • Third, the sum of the first and second constitute the (minimum) notice period applicable to the employee.

Notice periods 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 seniority of less than 20 years, or 28 days in the case of seniority of more than 20 years.

Notice periods 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 gross annual salary is less than EUR32,254 on 31 December 2013, the employee must respect a notice period of one-and-a-half months if the employee has been working for less than five years. If the seniority is more than five years, the notice period is equal to three months.
  • If the gross annual salary is between EUR32,254 and EUR64,508 on 31 December 2013, the employee must respect a notice period of one-and-a-half months if the employee has been working for less than five years. If the seniority is between five and ten years, the notice period is equal to three months. In the case of seniority of more than ten years, the notice period is four-and-a-half months.
  • If the gross annual salary is more than EUR64,508 on 31 December 2013, the employee must respect a notice period of one-and-a-half months if the employee has been working for less than five years. If the seniority is between five and ten years, the notice period is equal to three months. In the case of seniority between ten and 15 years, the notice period is four-and-a-half months. In the case of seniority of more than 15 years, the notice period is six months.
  • For all three categories (lower, middle and higher white-collar workers), two specific rules should further be taken into account:
    1. if the maximum notice period (three months, four-and-a-half months or six months) is reached for the calculation of the first step, the second step should no longer be taken into account; and
    2. if the maximum notice period is not reached for the calculation of the first step, the sum of the first and second steps cannot exceed 13 weeks.

Formalities

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 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, which 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 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 their employment and is not entitled to any compensation. There are, however, other direct sanctions: the dismissed employee loses their seniority and possibly their rights under the company pension plan, and they 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-compete undertakings. To waive a non-compete 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 their reintegration within the company).

There are different categories of protected employees in Belgium:

  • members of, or non-elected candidates for, the works council and the committee for prevention and protection at work;
  • members of the trade union delegation;
  • prevention advisers; and
  • “thematic” protected employees, such as pregnant women or employees benefiting from a time-credit regime, a career break or a specific leave, eg, parental leave. (These employees can only be dismissed for reasons that are not related to their situation. If these reasons cannot be substantiated, the protected employees will be entitled to an additional allowance.)

The scope of 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 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 their 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 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 their 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, they must previously inform the trade union delegation, as well as the union that has nominated the delegate, of their intention to dismiss the delegate. This notification must be sent by registered mail. In the case of 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 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.

If the employer fails to observe the above-mentioned procedure, or if the ground for dismissal is found to be invalid by a final decision of the conciliation bureau or the court, or if the serious cause is not accepted by the court, this 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 the dismissal. Failing to comply with such a request results in the payment of an additional indemnity equal to two weeks’ remuneration.

Furthermore, the employee may challenge their dismissal as being “manifestly unreasonable”, in which case the employer must prove that the dismissal is motivated by:

  • the employee's behaviour;
  • the employee's capabilities; or
  • the economic necessities of the company.

If the dismissal is found to be manifestly unreasonable, the court may award an additional indemnity of three to 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' remuneration is awarded on average.

The 2007 Belgian Anti-Discrimination Acts

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 origin, nationality, race, skin colour, descent, national or ethnic origin, gender, pregnancy, birth or motherhood, and change of gender.

Direct discrimination (a distinction based on one of the grounds mentioned in the Anti-Discrimination Acts) and indirect discrimination (a 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).

Burden of Proof

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.

Other Measures

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 employee discriminated against).

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 their dismissal is discriminatory, they can ask to be reintegrated into the company.

Finally, an employee who introduces a complaint for discrimination is protected against sanctions/negative measures by the employer that are related to the complaint (within 12 months of the employee's complaint, the employer bears the burden of proof that the measure/sanction had 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 the 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. Their 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 they have 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.

Class Actions

The scope of the Belgian class action device is confined to certain fields, such as competition, consumer protection, and product safety laws. Furthermore, 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 is possible 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.

  • Firstly, employees and employers can rely on traditional procedural techniques, such as:
    1. joinder of claims, which allows several claims between two or more parties to be filed together (in one writ of summons or petition) when they are so closely connected that it is appropriate to try them together to avoid contradictory decisions;
    2. claims in intervention, which allow third parties to intervene in pending proceedings; and
    3. party representation, which enables a person who explicitly received a mandate (power of attorney) to represent (a group of) individuals during proceedings.
  • By virtue of the Anti-Discrimination Acts, associations or organisations that satisfy certain legal criteria have standing to initiate an injunctive (collective) action to stop any discriminatory behaviour. Such organisations include the Centre for the Equality of Chances and Opposition to Racism, the Institute for the Equality of Women and Men, and representative employees’ and employers’ organisations. These statutory collective actions are rarely used in Belgium because of the impossibility of claiming damages, as they can only be used for injunctive or declaratory relief. Moreover, the judgments in these cases are not binding for the individual class members – if they want financial compensation, they must individually sue the defendant.
  • Since 2018, the Judicial Code has allowed certain legal entities the purpose of which is to protect human rights or fundamental freedoms recognised by the Belgian constitution or international treaties binding in Belgium, to bring an “action for the protection of a collective interest”. In employment law matters, such actions could be relevant in discrimination cases or in cases of human trafficking. Contrary to the aforementioned statutory collective actions, any form of relief, including financial compensation, may be sought with such action for the protection of a collective interest.
  • Article 4 of the Collective Bargaining Act grants standing to representative unions to claim injunctive or declaratory relief with respect to the rights that their members derive from the CBAs concluded by them. This technique must be distinguished from party representation, as the unions do not represent the employees but exercise an own right. Hence, employees do not have to formally opt into the procedure to benefit from it, unless they wish to obtain monetary compensation, in which case they must formally opt into the proceedings or may start separate simultaneous proceedings. The scope of this action is further limited in that respect as statutory rights that are not contained in CBAs (eg, misclassification as a blue-collar rather than a white-collar worker) cannot be the subject of the union's claim.
  • Finally, Article 138bis § 2 of the Belgian Judicial Code grants the labour public prosecutor (provided that it abandons criminal prosecution) standing to bring a civil action before the competent labour tribunal/court of appeal against employers for violations of employment laws affecting “some or all workers” on an undertaking. Only injunctive or declaratory relief can be sought with such action. If employees wish to obtain monetary relief, they have to individually intervene in or subsequently initiate proceedings.

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:

  • their yearly income exceeds a certain amount (EUR73,571 for 2022); and
  • the employee concerned is in charge of the management of the company or has managing responsibility over a department or a business unit of the company that could be perceived as a standalone company.

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.

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Trends and Developments


Authors



Loyens & Loeff is an international law and tax firm with specialists in Belgium, Luxembourg, the Netherlands and Switzerland. In Belgium, the employment and benefits team counts two partners and seven associates offering integrated legal and tax advice and covering all aspects of employment, benefits and pension law. The team strives to go beyond legal counselling and be a true business partner to its clients, making their lives easier and adding value both to their projects and operations by offering pragmatic solutions to complex national and/or cross-border legal and tax issues. The firm's specialists are recognised for their out-of-the-box solutions and innovative vision on change and transformation, and are leading negotiations in reorganisation plans, (alternative) remuneration and flexible reward. The team has recently been assisting a wide range of clients with the rolling-out of complex and tailor-made working-from-home policies, adapting to the post-pandemic work challenges.

Introduction

The trend towards more flexibility is not new in Belgium. It is the result of a radical evolution of the labour market and digital tools, while employment law is lagging behind. Work has changed a lot, employment law a lot less, despite various legislative initiatives taken in recent years (eg, the 2017 Act on feasible and manageable work) to provide companies and employees with legal tools allowing for greater flexibility.

The change in working conditions, particularly in the service industry, and the increasing autonomy of employees goes hand in hand with an intensification of their responsibilities and of the mental burden falling on them, provoking well-known consequences in terms of well-being, absenteeism and productivity. At the same time, the recent COVID-19 crisis has highlighted the opportunities of home working and the many legal issues it raises.

Labour Deal

In this context, the Belgian federal government recently reached a final political agreement on a long-planned labour reform laid down in a draft act submitted to parliament in early July 2022 (Doc 55/2810): the so-called "Labour Deal". It is expected that the new measures will become effective in the autumn of 2022. 

This reform broadly consists of four pillars of measures targeting an 80% employment rate by 2030. Most of these measures are intended to improve employees’ rights and accommodate them in the modern workplace. As a result, the administrative and organisational implications of implementing these measures will mainly be the responsibility of employers. 

Work-life balance

The first set of measures is aimed at improving the well-being of employees by enabling better reconciliation of private and professional life to avoid an increase in the psycho-social burden and the risk of burnout.

Four-day work week

The first much-discussed measure introduces the possibility for employees to perform a normal full-time working week over a four-day period. To this end, the daily working time limit may be increased to 9.5 hours if provided by the company working regulations, or to ten hours if this is provided by a company-level collective bargaining agreement (CBA). This last route will have to be followed by companies that have implemented an effective weekly working time of up to 40 hours with 12 compensatory rest days per year.

Both options therefore imply that the trade unions will be involved in the introduction of such system, either through their required approval of work regulation amendments in the works council, or as a contracting party to the company’s CBA.

Subsequently, the initiative lies with the employee. Any individual wishing to benefit from the newly introduced four-day system will have to submit a written request. If the employer agrees to it, this will be confirmed in an addendum to the employment contract valid for a renewable six-month period and containing mandatory provisions on working time. Several retention and communication requirements also apply.

The employer is not obliged to grant the employee’s four-day schedule request but should motivate their refusal in writing. On the other hand, the employee concerned cannot be subject to unfavourable treatment (including termination) for reasons related to their request.

Alternating work week

A second measure is the introduction of an alternating weekly working time regime, intended to better accommodate the employees’ working time with childcare.

This system consists of a cycle of two consecutive weeks during which it is possible to work up to nine hours a day and up to 45 hours a week, provided that the first week’s working time is directly compensated by the second week to reach the average weekly working time over the two-week cycle. During the third quarter of the year (ie, the school summer holidays) or if there is an unforeseen event in the life of the employee concerned, the reference cycle may, however, cover a four-week period. 

This alternating work week system needs to be introduced via the company’s working regulations, with mandatory provisions on the average work schedule, start and end time, workdays of the week, minimum and maximum working time per day and week. 

Again, the initiative lies with the employee, who will have to submit a written request. If the employer agrees to it, this will be confirmed in an addendum to the employment contract, valid for a renewable six-month period.

As is the case for the four-day work week, the employer is not obliged to grant the employee’s alternating schedule request but should motivate their refusal in writing within one month. On the other hand, the employee concerned cannot be subject to unfavourable treatment (including termination) for reasons related to their request. 

Right to disconnect

The boundary between working time and rest time for workers has become increasingly blurred in recent years, certainly since the COVID-19 crisis and the spread of teleworking, requiring legal intervention to ensure the right to disconnect or, more precisely, the right to be and remain disconnected outside working hours. 

Unless provided for in a national or sectoral CBA, all companies employing at least 20 employees will have to lay down rules on disconnection in a company CBA or via the working regulations, by 1 January 2023 at the latest, following the minimum framework set by law. 

The aim is to establish within each company practical arrangements that guarantee this right to disconnection (eg, instructions not to respond to emails or calls on their mobile phones, putting computer servers on standby outside working hours, etc) and define the guidelines around the use of digital tools in order to protect the employees’ rest time, vacation, private life and family life.

Training

A key issue to increase the employment rate is employee training. The draft act therefore contains an entire chapter on (individual) training rights, whereby companies employing more than 20 employees will essentially have to establish an annual training plan and offer up to five annual training days to each employee.

Training right

Each employee will have an individual right to three days of training in 2022, four days as from 2023, and five days as from 2024, pro-rated for part-timers. These training sessions must be paid by the employer. Companies with fewer than ten employees are exempted from this obligation, while companies with fewer than 20 employees only have the obligation to offer one day of training per year.

Annual plan

To make this possible, companies must draw up an annual training plan containing the training opportunities offered by the company both formal and informal. This plan is established in consultation with the works council (or failing that, the trade union delegation, or failing that, the entire personnel). Companies with fewer than 20 employees are exempt from this obligation.

Dynamic Labour Market

Another set of measures included in the Labour Deal are intended to render a contract’s termination more activating, to facilitate professional reintegration and job transition. The measures listed below may not, however, be combined.

Redeployment activities

For employees with a notice period of at least 30 weeks, the notice period will be divided into a first part (two thirds of the statutory notice, with a minimum of 26 weeks) and a second part (the remaining weeks, with a minimum of four). Besides the mandatory four weeks of outplacement, these terminated employees will have the right to devote the last part of this notice period to redeployment activities (additional training, coaching, outplacement), which will be financed by the employer's social contributions on the notice period or indemnity. The employees performing the notice period will be allowed to be absent during this part with retention of salary to follow training that is conducive to employment.

Transition path

During the notice period and upon either party’s initiative, the employee can work for another employer-user during the notice period with a view to subsequent permanent employment. These transition paths are organised by temporary work agencies or regional employment services. Terms and conditions are to be outlined in a four-party document involving both employers, the employee and the agency.

During the transition path, the employer keeps paying the salary, but this is charged in full or in part to the user-employer, in accordance with the agreements concluded between the two companies. At the end of the transitional period, the user-employer must hire the employee under a contract for indefinite duration or pay them compensation equal to 50% of the remuneration corresponding to the length of the transition period. 

Digital Labour Market

A final set of measures also aims to better regulate the legal uncertainties and practices that accompany the digitalisation of the labour market.

Platform workers

Whether platform workers such as Deliveroo's couriers or Uber drivers are self-employed or employees has been highly debated ever since the platform economy came into existence. 

To address this discussion and in line with what applies in other high-risk sectors, a new rebuttable legal presumption of employee status will be introduced. A specific list of eight criteria for platform workers will be included in the Labour Relations Act, being the possibility of:

  • imposing exclusivity with the platform;
  • using geolocalisation for other means than the good functioning of the platform;
  • restricting freedom of choice regarding the way of performing the work;
  • restricting the income level of a platform worker, eg, by paying hourly rates;
  • obliging the platform worker to comply with rules on behaviour and appearance;
  • attributing future work opportunities by way of assessing the platform worker’s performance;
  • restricting the freedom of organisation of work; and
  • restricting the possibilities of building a client base outside of the platform.

If at least three of the eight criteria are met, or two out of the last five criteria, then an employment relationship will be presumed. However, this presumption can be rebutted.

In addition, work accident insurance must be taken out for platform workers, irrespective of their employment status.

E-commerce

Two specific measures are provided for the e-commerce industry. Firstly, it will be possible to introduce night work between 8 pm and midnight in the business by means of a CBA concluded with only one trade union. 

Secondly, companies will be able to set up a one-off night work experiment in which employees can work between 8 pm and midnight on a voluntary basis. This can be done once at the level of the technical operating unit for a maximum of 18 months. The working time schedules can be integrated automatically into the working regulations, without having to go through the cumbersome amendment procedure. However, the implementation of the experiment will require compliance with several burdensome formalities, such as involving the consultative bodies or the employees and the communication of certain information to the inspection services and the competent Joint Committee.

Management Incentive Plans

Talent attraction and retention remains a key issue for employers. In this regard, an increasing number of companies compensate at least some of their employees with incentive plans. Given the competitive labour market, this trend is no longer exclusively limited to upper-level management. These plans remain, however, mainly available to Belgian employees who work for Belgian subsidiaries of foreign multinational companies.

In Belgium, most management incentive schemes are conceptually structured as either stock option plans or free share plans, the latter being less beneficial for Belgian tax residents from a tax and social security perspective. Belgian employees are often offered options based on a stock option plan issued by a foreign parent company. 

Stock options receive beneficial tax treatment, with upfront taxation on the lump-sum value of the options and in principle no taxation at exercise or, at a later stage, alienation of the shares obtained through exercising the option. 

In addition, stock options granted to employees are, under certain circumstances, exempt from social security contributions. This is a double advantage: no employer contributions (about 30% uncapped), nor employee contributions (13.07% uncapped) need to be paid with respect to these management incentive plans. 

The stock options regime is often set up in an international context, leading to possible mismatches and double taxation in the absence of proper international structuring. The preferential tax regime applicable to stock options is different for free shares, restricted stock (units) or phantom shares, for which taxation occurs at the actual acquisition of the shares or the payment of an equivalent cash amount. Taxes are in this case due on the actual share value at the moment of acquisition. Furthermore, unlike stock options, these incentive schemes are not exempt from social security contributions. In principle, no personal income tax is due on capital gains on shares held by Belgian-resident individuals, while dividends and interest received are taxed at a flat rate of 30%.

Furthermore, another growing trend around management incentive plans is their use in a transactional context for upper management of the target company, providing for multiple performance levels that will determine the entitlements of the managers. 

To this end, two options are regularly contemplated. On the one hand, the grant of stock options resulting in additional participation (ordinary shares) in the target company. A performance-based vesting schedule would then be inserted in the stock option plan. On the other hand, the purchase of ratchet shares, the purpose being for the target company to issue a new category of shares, ie, preferred shares, based on which a higher return (in comparison to the return on ordinary shares) can potentially be realised by the managers upon exit. The underlying ratchet mechanism would be performance based. A ratchet mechanism would thus be introduced to grant a preferential return provided performance-based criteria are reached.

Soft Transformation

Given the current economic uncertainties, the need for flexibility and the ongoing war for talent, many employers are being forced to rethink and right-size their workforce. 

This explains the current transformation trend that comprises the acceleration of long-scheduled changes and a preference for soft approaches. Companies are looking for solutions that are future-proof and sustainable rather than focusing on massive lay-offs. Employers are increasingly more inclined to conclude agreements, so-called smart deals, with unions and employees to avoid major restructurings. Unions, in turn, are willing to make compromises to avoid a fatal bankruptcy scenario.

The recent statistics published by the Employment Federal Public Service seem to confirm the latter, as 13 collective dismissal intentions were announced, involving 760 employees in the first quarter of 2022. This is fewer than in the first quarter of 2021, when there were 36 collective dismissal intention announcements, involving 2,824 employees. In the second quarter of 2022 another 13 collective dismissal intentions were announced, involving 858 employees. Again, this is fewer than in the second quarter of 2021, with 19 collective dismissal intention announcements, involving 1,288 employees.

This stringent collective dismissal legal framework could be further developed, as a draft act was submitted to parliament in April of last year (Doc 55/1928) in which certain changes to the current provisions were proposed, such as, an obligation to conclude a social plan (which is in practice already frequently done), further possibilities to involve a social mediator, and additional information obligations towards the authorities. The state council issued its opinion on the draft on 6 July 2022. At this stage, it remains unclear, however, if and when we can expect this act to come into force. 

Given the burdensome and lengthy collective dismissal procedures, the significant impact of such announcement on the staff, and the social climate, alternative "softer" approaches should in any event preferably be considered first, such as voluntary leave arrangements, salary optimisation, temporary unemployment, public subsidies, working time flexibility, etc.

EU Directives Implementation

Various important employment-related EU directives must/should be transposed by Belgium in the course of 2022. The related Belgian draft acts are currently in the "legislative pipeline".

Whistle-blowers

On 8 July 2022, the council of ministers approved a draft act transposing part of the European whistle-blowers directive and going further than is currently prescribed by the directive. The text provides for better protection against retaliation by the employer in terms of dismissal and legal proceedings. 

Three channels to facilitate reporting have been established: an internal channel; an external channel (reporting to a federal ombudsman, including for former employees); and the press. Reporting through the press applies if the above channels are not successful and in case of immediate threat to the public interest. The text also provides protection for whistle-blowers reporting tax fraud. 

In addition to these channels, two bodies will be made available to whistle-blowers: the Federal Ombudsman (responsible for checking the admissibility of information and forwarding it to a competent authority) and the Federal Institute for the Protection of Human Rights (providing whistle-blowers with professional, legal and psychological support). 

Transparent and predictable working conditions

On 6 May 2022, the council of ministers approved a draft act partially transposing the EU transparent and predictable working conditions directive (which had to be transposed by all member states on 1 August 2022, at the latest).

Along with several new criminal sanctions in the Social Criminal Code, the draft act guarantees, on the one hand, the right to information for employees and (contractual) civil servants on certain essential terms and conditions of employment (eg, function, remuneration, working hours) and on the other hand, the creation of several substantial new rights for private sector employees and contractual civil servants. These new rights include several additional restrictions on trial periods that still exist in temporary, agency and student employment contracts; the impossibility for the employer to prohibit their employee from working for other employers, unless a legal exception applies; the guarantee of a minimum degree of predictability regarding variable working hours; the right of any worker with at least six months' seniority to request a form of employment offering more predictable and secure working conditions and the obligation for the employer to give a reasoned written reply.

A dismissal protection system is also provided for the benefit of any employee making use of these rights or filing a complaint against their employer for failing to comply with this framework.

Work-life balance

On 29 April 2022, the council of ministers approved a draft act and two draft royal decrees to transpose the EU directive on work-life balance for parents and carers into Belgian law. 

The directive aims to promote gender equality by encouraging women's participation in the labour market and providing for a more balanced distribution of family responsibilities between women and men. It aims to close the gender pay and pension gap. The text sets out minimum requirements and individual rights for paternity leave, parental leave, carer's leave, absence from work on grounds of force majeure, and flexible working arrangements for workers who are parents or carers. It provides several protective measures for the exercise of these rights. 

The transposed legal instruments include the following for Belgium:

  • new care leave of five days;
  • the possibility to apply for flexible working arrangements;
  • more extensive protection against dismissal for "caring" employees;
  • sanctions for not granting birth leave;
  • new protection against the non-renewal of a temporary contract on the grounds of pregnancy, childbirth or taking converted maternity leave; and
  • a duty to give reasons when refusing certain forms of leave and postponing parental leave.
Loyens & Loeff

Tervurenlaan 2
1040 Brussels
Belgium

+32 2 773 23 29

+32 2 743 43 10

filip.saelens@loyensloeff.com www.loyensloeff.com
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Law and Practice

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Linklaters is recognised as a market-leading law firm, with a presence in the Belgian market dating from 1969 and with offices in Brussels and Antwerp. Its wide offering of specialised practices, ranging from corporate and banking to employment and tax, all hold a market-leading position recognised by international directories and awards, making Linklaters unique among law firms in Belgium. The employment and incentives team guides its clients through major corporate restructurings and cutting-edge collective or individual employment matters. It has also developed unique expertise in advising on incentive schemes. The main areas of practice include individual termination, collective dismissals and closure of undertakings, individual dismissals including protected employees, discrimination issues, employment benefits and pension plans, incentives, employee representative bodies, expatriates, social security, union actions and strikes, national and cross-border mergers, data privacy, labour litigation and general employment law advice, including in EU law.

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Loyens & Loeff is an international law and tax firm with specialists in Belgium, Luxembourg, the Netherlands and Switzerland. In Belgium, the employment and benefits team counts two partners and seven associates offering integrated legal and tax advice and covering all aspects of employment, benefits and pension law. The team strives to go beyond legal counselling and be a true business partner to its clients, making their lives easier and adding value both to their projects and operations by offering pragmatic solutions to complex national and/or cross-border legal and tax issues. The firm's specialists are recognised for their out-of-the-box solutions and innovative vision on change and transformation, and are leading negotiations in reorganisation plans, (alternative) remuneration and flexible reward. The team has recently been assisting a wide range of clients with the rolling-out of complex and tailor-made working-from-home policies, adapting to the post-pandemic work challenges.

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