This country-specific Q&A provides an overview to employment and labour law in Belgium.
It will cover termination of employment, procedures, protection for workers, compensation as well as insight and opinion on the most common difficulties employers face and any upcoming legal changes planned..
This Q&A is part of the global guide to Employment & Labour. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/employment-labour-law/
Does an employer need a reason in order to lawfully terminate an employment relationship? If so, what reasons are lawful in the jurisdiction?
During the first six months of an employment contract of indefinite duration, the employer can terminate the employment relationship for any reason whatsoever and without motivation.
After the first six months of employment, the employer must communicate the reasons for dismissal, in writing, if the worker requests him to do. In such case, if the employer does not (timely) respond, he will automatically be liable to pay an amount corresponding to two weeks’ remuneration. Any reason may be given as a motivation for dismissal, whether economical or technical (e.g. restructuring of a company department) or personal (e.g. underperformance). In case of restructurings, temporary work and student contracts, however, workers are not entitled to request the reasons for dismissal.
In addition, the worker may claim that the dismissal is manifestly unfair. A dismissal will only be deemed manifestly unfair if the justification provided is (i) unrelated to the worker’s attitude or performance or to the employer's operational business requirements and (ii) if a normal and reasonable employer would not have taken the same decision. If the dismissal is found to be manifestly unfair, the employer may be ordered to pay an allowance corresponding to 3 to 17 weeks’ remuneration, on top of the normal severance allowance, if any (it being understood that such remuneration includes the monthly salary and extra-legal benefits).
A termination of employment cannot be directly or indirectly based on a criterion protected by Belgian anti-discrimination legislation, failure which the worker may be awarded damages (see questions 11 and 12).
What, if any, additional considerations apply if large numbers of dismissals (redundancies) are planned?
Special procedures need to be followed in the case of a collective dismissal.
A “collective dismissal” is defined as a mass lay-off on technical and economic grounds involving, over a 60-day period:
- at least 10 workers in companies employing on average between 20 and less than 100 workers in the calendar year preceding the collective dismissal;
- at least 10% of the workers in companies employing on average between 100 and less than 300 workers in the calendar year preceding the collective dismissal; and
- at least 30 workers in companies employing on average 300 workers or more during in the calendar year preceding the collective dismissal.
The legislation on collective dismissals only applies to “companies” having employed at least 20 workers on average during the calendar year preceding the collective dismissal. For the purposes of this legislation, a “company” is defined as a technical operation unit, being derived from economic and social criteria. Such technical operation 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 worker representative body, the employer must inform and consult the workers directly. Specific information must be provided so that the worker representatives or workers are fully informed. Authorities also have to receive specific information. The employer must then organise one or more consultation meetings with the worker 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 worker representatives and provide them with answers (the so-called “Renault” procedure).
Once the employer considers that he has properly completed the abovementioned procedure, worker representatives are invited to a subsequent consultation meeting, during which the employer will formally confirm his 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 (which can be extended to 60 days) following this notification.
In addition, in the case of a collective dismissal, case-law confirmed that there is no legal obligation to agree on a social plan, but negotiations must be conducted between the parties (except if a plan for early retirement is to be agreed).
What, if any, additional considerations apply if a worker’s employment is terminated in the context of a business sale?
As such, a business sale (i.e. a transfer of undertaking entailing the application of Collective bargaining agreement 32bis, which implements the European Acquired Rights Directive in Belgium) is no valid ground for dismissal. This rule applies to both the former and the new employer. Therefore, any dismissal resulting from a business sale (either before or after the sale takes place) can be deemed as manifestly unfair, unless there are economic, technical or organisational reasons justifying the dismissal. The applicable legislation, however, does not provide for specific sanctions.
What, if any, is the minimum notice period to terminate employment?
Employment contracts of indefinite duration started as of 1 January 2014
The following notice periods apply in the event of termination by the employer:
Seniority (length of service) Notice period < 3 months 2 weeks ≥ 3 months and < 6 months 4 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 + 3 weeks per started year of seniority ≥ 20 years and < 21 years + 2 weeks per started year of seniority ≥ 21 years + 1 week per started year of seniority
In specific circumstances, different notice periods may apply (e.g. when the worker reaches the statutory pension age, in case of temporary unemployment, in case of a recognition as a company in restructuring or in difficulty, etc.). Some industries may also deviate from the abovementioned notice periods (see question 9).
Employment contracts of indefinite duration started before 1 January 2014
Notice periods are expressed in months.
The calculation of the notice period or corresponding severance pay for these contracts should be conducted in three steps.
(i) First, the calculation must be made on the basis of the seniority accrued up to 31 December 2013, under the rules previously applicable in case of termination by the employer.
– For blue collar workers, the employer has to determine which notice period was applicable on 31 December 2013 (at industry or company level).
– For white collar workers, the applicable notice period depends on the worker’s gross annual remuneration (including fringe benefits) on 31 December 2013.
- For the “lower” white collar workers (≤ € 32,254), the notice period is equal to three months per started period of five years’ seniority.
- For the “higher” white collar workers (> € 32,254), the notice period is equal to one month per commenced year of seniority, with a minimum of three months.
(ii) Second, the calculation must be made on the basis of the seniority accrued for the period as of 1 January 2014, under the new rules applicable in case of termination by the employer. The seniority of the worker is therefore reduced to zero, on 1 January 2014, for the application of step (ii), and the applicable notice period is determined on the basis of the abovementioned table.
In this step (ii), the status of blue collar or white collar does not make any difference.
(iii) Third, the sum of steps (i) and (ii) constitute the (minimum) notice period applicable to the worker.
Is it possible to pay monies out to a worker to end the employment relationship instead of giving notice?
Instead of terminating the employment contract by serving notice on the worker (thereby allowing him/her to continue working during the notice period), the employer can terminate the employment contract with immediate effect, upon payment of a severance pay.
Such severance pay is equal to the remuneration and benefits that would have been paid during the applicable notice period (see questions 4 and 15).
Can an employer require a worker to be on garden leave, that is, continue to employ and pay a worker during his notice period but require him to stay at home and not participate in any work?
Any clause in the employment contract allowing the employer to decide to put a worker on garden leave during his/her notice period is null and void. It will not be enforceable. Garden leave arrangement is possible with the consent of the worker only.
Does an employer have to follow a prescribed procedure to achieve an effective termination of the employment relationship? If yes, what are the requirements of that procedure or procedures?
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
- be served by a bailiff or be sent by registered mail (taking effect on the third working day (i.e. all days except Sundays and Bank Holidays) following the day of posting);
failing which the notice will be null and void (see question 8).
The notice period starts on the first Monday following the week during which it is served on the worker.
If the employment relationship is terminated upon payment of a severance allowance, the above formalities do not apply.
The employer and the worker can also opt, by mutual consent, for a mixed solution whereby the worker only serves part of the notice period, following which a severance allowance is paid, which corresponds to the remuneration the worker would have earned during the unperformed part of the notice period.
If the employment relationship is terminated by the employer for serious misconduct of the worker, 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.
Irrespective of the way in which the employment relationship is terminated, the employer must bear in mind that written communications to the worker will only be legally binding and, therefore, enforceable, if the Belgian language requirements are complied with. The applicable rules and sanctions (in case of non-compliance) depend on the location of the relevant employment seat(s) of the company in Belgium.
If the employer does not follow any prescribed procedure as described in response to question 7, what are the consequences for the employer?
If the employer does not comply with the formalities applicable in case of termination upon notice (see question 7), including if the duration of the notice period mentioned in the notice letter is not correct, the notice period will be null and void. As a result, the employment relationship will be regarded as terminated without notice and the worker will be entitled to claim a severance allowance.
How, if at all, are collective agreements relevant to the termination of employment?
For blue collar workers, industry level collective labour agreements may determine the notice period applicable for the period up until 31 December 2013 (see question 4).
Furthermore, a number of industries, such as the banking and insurance sector, included job (and/or income) security provisions in their collective labour agreements. Even though their content vary, these provisions usually set out a specific procedure that has to be followed before the employer can lawfully terminate the employment. Failure to comply with the procedure may in particular result in the employer having to pay a compensation.
Does the employer have to obtain the permission of or inform a third party (e.g local labour authorities or court) before being able to validly terminate the employment relationship? If yes, what are the sanctions for breach of this requirement?
No, not as a rule, except in case of (i) collective dismissal (see question 2) or (ii) termination of specific protected workers (e.g. members of the works council).
What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?
A worker who files a complaint or starts legal proceedings in relation to a breach of the general anti-discrimination law, the law on equal treatment between men and women or the anti-racism law, is protected as of the day when he/she files the complaint or starts the legal proceedings. The protection is lifted, respectively, 12 months after the filing of the complaint or three months after a final decision is rendered by a court.
Under such protection, no detrimental measure (i.e. a termination of employment, a unilateral modification of the employment conditions or a detrimental measure taken after the termination of employment) can be taken against the worker. Consequently, the employment cannot be terminated for a reason related to the complaint or the proceedings. However, it remains possible to terminate the employment (i) for serious cause or (ii) for any reason whatsoever, which is not related to the complaint or the proceedings. If the employment is terminated, the burden of proof will fall on the employer, who will have to demonstrate that the dismissal is not related to the complaint or the proceedings.
If the employment is terminated during the protection period, the employee may request his reinstatement in the company. In case of reinstatement, the worker will be paid his/her normal remuneration (including social security contributions) for the period between the dismissal and the reinstatement. If the employer refuses the reinstatement and a court confirms that the detrimental measure is in breach of the prohibition, the employer will be liable to pay (i) a severance allowance and (ii) damages equal to six months’ remuneration (or damages covering the actual loss suffered, the extent of which must be proved by the worker). Under specific circumstances (i.e. if the worker is proven right), the worker will not to request his/her reintegration and will be entitled to the payment of the severance allowance and damages as mentioned above. The same protection apply to the workers who can testify about the discrimination-related facts.
Protection against dismissal is also applicable to a worker who files a complaint/starts legal proceedings in relation to a breach of the law on equal remuneration between men and women.
Furthermore, any contractual provision in breach of the general anti-discrimination law, the law on equal treatment between men and women or the anti-racism law, is to be considered null and void. The same applies to contractual clauses whereby the protection granted by these laws is waived.
A worker who faces a breach of the abovementioned laws can also start an injunction procedure in order to have a judge order the cessation of the allegedly discriminatory measures.
A worker who files a formal request for psychosocial intervention, a complaint or claim for harassment, violence or unwanted sexual behaviour, also benefits from a similar protection against dismissal. The protection applies to workers who can testify about the alleged facts. It is also possible for the worker to start an injunction procedure.
What are the possible consequences for the employer if a worker has suffered discrimination or harassment in the context of termination of employment?
Termination of employment cannot be directly or indirectly based on a criterion protected by the Belgian anti-discrimination legislation, such as the worker’s gender, age, sexual orientation, civil status, birth, wealth, religious or philosophical belief, present or future health, disability, physical or genetic features, political opinion and language, social origin, trade union affiliation, nationality, (presumed) race, skin colour, descent or national or ethnic origin.
It is also forbidden to discriminate against part-time workers as compared to full-time workers and against fixed-term workers as compared to workers with an employment contract of indefinite duration.
If the dismissal is found discriminatory, the employer will be liable for damages equal to six (or three) months’ remuneration or to damages covering the actual loss suffered (the extent of which must be proved by the worker). These damages can be combined with a severance allowance.
A worker who suffers harassment can claim damages either on the basis of common law or on the basis of the regime provided by the law of 4 August 1996. In the second case, if the worker is successful, he/she may be awarded damages corresponding to three to six months’ remuneration or to the actual loss suffered (the extent of which must be proved by the worker).
A worker victim of discrimination can also try and claim an allowance for manifestly unfair dismissal.
Are any categories of worker (for example, fixed-term workers or workers on family leave) entitled to specific protection, other than protection from discrimination or harassment, on the termination of employment?
Yes, there are different categories of protected workers:
- members of or non-elected candidates for the works council and the committee for prevention and protection at work;
- members of the union delegation;
- prevention advisors; and
- “thematic” protected workers, such as pregnant women or workers benefiting from a time-credit regime, a career break or a specific leave (e.g. parental leave), etc.
The scope of the protection depends on the type of protection concerned.
Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?
No, there is no specific protection applicable in the private sector.
However, whistleblowing legislation exists in the public sector, at Flemish level and at federal level, and provides for protection against dismissal.
What financial compensation is required under law or custom to terminate the employment relationship? How do employers usually decide how much compensation is to be paid?
No financial compensation is required if the employment relationship is terminated by serving notice on the worker, as the worker continues working up until the end of the notice period.
If the employment relationship is terminated with immediate effect, the worker will be entitled to a severance allowance equal to the remuneration that would have been paid during the applicable notice period. The remuneration taken into account includes the worker’s monthly salary and the value of the extra-legal benefits to which the worker was entitled at the moment when the employment contract was terminated.
Whether the employment relationship is terminated upon notice or upon payment of a severance allowance, the worker is entitled to (i) the statutory vacation pay upon departure (only for white collar workers), (ii) the pro-rated year end premium and/or bonus as well as (iii) the salary for public holidays falling within 30 days following the termination of the employment relationship.
Can an employer reach agreement with a worker on the termination of employment in which the employee validly waives his rights in return for a payment? If yes, describe any limitations that apply.
Yes, the worker can validly waive his/her rights by entering into a settlement agreement with the employer after the termination of employment (at that point, any risk of pressure onto the worker disappears). In order to be valid, the agreement cannot reveal a lack of consensus, it must also set out mutual concessions made by the parties and must include an explicit and accurate waiver clause.
Can an employer require a worker to keep information relating to the employer confidential after the termination of employment?
The worker has a statutory duty to keep confidential any secret information relating to the production, to the business as well as to personal and confidential matters of which he/she has obtained knowledge during the performance of his employment. This duty continues to apply after the termination of the employment relationship.
Are employers obliged to provide references to new employers if these are requested?
There is no such statutory obligation. Upon termination of employment, for whatever reason, the employer is obliged to deliver to the worker a certificate which mentions (i) the start and end date of employment and (ii) the nature of the work performed (only).
What, in your opinion, are the most common difficulties faced by employers in your jurisdiction when terminating employment and how do you consider employers can mitigate these?
As in Belgium either party to an employment contract has the right to terminate the employment unilaterally, the difficulties referred to are limited. Unilateral termination, as such, cannot be challenged.
The main difficulties are:
- the calculation of the severance allowance (see questions 4 and 5);
- the motivation for dismissal (see question 1);
- specific protections of all kinds rendering termination more intricate and/or more expensive (see questions 11 to 14).
Are any legal changes planned that are likely to impact on the way employers in your jurisdiction approach termination of employment? If so, please describe what impact you foresee from such changes and how employers can prepare for them?
To our knowledge no such legal changes are being planned. The uniform status law came into force on 1 January 2014 and fundamentally changed the way employers must approach termination of employment.
The Government announced that it was examining ways to make collective dismissals more intricate and/or expensive. It is too early to comment on this as no concrete plans have been communicated yet.