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, describe what reasons are lawful?
Under national collective bargaining agreement (CBA) nr. 109 on justified dismissal, the employee engaged for an indefinite term can ask the concrete reasons of his dismissal.
If the employer does not provide these reasons within 2 months of the express demand of the employee, he will have to pay an indemnity of 2 weeks’ remuneration. Moreover, if the dismissal is considered as ‘manifestly unreasonable’ by the judge, he can condemn the employer to an indemnity from 3 to 17 weeks’ remuneration entirely at his discretion. A ‘manifestly unreasonable’ dismissal is a dismissal (i) based on reasons not related to the ability or behaviour of the employee or which are not related to the necessity of the business and (ii) that would not be decided by a reasonable and prudent employer.
The employer must be careful with the reasons linked to the ability of the employee, because of the risk of discrimination if the dismissal is linked to the health status of the employee.
What, if any, additional considerations apply if large numbers of dismissals (redundancies) are planned?
In case of ‘collective dismissal’, the employer must inform and consult the employees’ representatives (or the employees themselves if there is no works council, health and safety committee or union delegation) by providing specific information on the envisaged collective dismissal. He also has to notify certain information to the authorities.
There is a ‘collective dismissal’ if, during a period of 60 days, a certain number of employees are dismissed for reasons not directly related to the person (but rather to the circumstances of the business): 10 employees in companies employing 20 to less than 100 employees during the last 12 months, 10% of the employees for companies from 100 to less than 300 employees and 30 employees for companies with at least 300 employees. The ‘companies’ are defined as the technical operation unit, described by economic and social criteria. Therefore, they do not necessarily coincide with the legal entity.
Most of the time, a collective dismissal happens in three phases: (i) the announcement of the employer’s intention to proceed to collective dismissal and the information and consultation on the reasons and alternatives with the employees’ representatives, (ii) the negotiation of a social plan and (iii) the implementation of it. Legally, there is nevertheless no obligation to conclude a social plan (except if there is a plan for early retirement).
At the end of phase (i), if the employer confirms the collective dismissal, he will notify the authorities, which will allow to begin a freezing period of 30 days (extendable to 60 days) during which no dismissals can be made.
Special indemnities and outplacement services, to help the dismissed employees find a new job (‘reconversion cell’), are legally foreseen (with different thresholds than the ones for the information and consultation duty). Furthermore, the social plan can contain extra-legal indemnities or measures.
Even if the thresholds of the collective dismissal are not reached, multiple dismissals can qualify for a special procedure of information and consultation imposed by CBA’s concluded at a sectoral level of industry.
What, if any, additional considerations apply if a worker’s employment is terminated in the context of a business sale?
In case of a sale of the business, understood as a transfer of undertaking under the meaning of Directive 2001/23, the transfer as such is not a valid reason to dismiss an employee.
If the company cannot provide economical, technical or organisational reasons for the dismissal, it exposes itself to damages, not legally fixed, but which could, for instance amount to 17 weeks on the grounds of manifestly unfair dismissal (see question 1).
What, if any, is the minimum notice period to terminate employment?
For the employment contracts with an indefinite term, which have started as from 1 January 2014, the notice period to be respected by the employer can be resumed as follows:
< 3 months
≥ 3 months and < 6 months
≥ 6 months and < 9 months
≥ 9 months and < 12 months
≥ 12 months and < 15 months
≥ 15 months and < 18 months
≥ 18 months and < 21 months
≥ 21 months and < 24 months
≥ 2 years and < 3 years
≥ 3 years and < 4 years
≥ 4 years and < 5 years
≥ 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
For employment contracts started before 1 January 2014, the notice period is composed from the addition of two parts: the first calculated based on the seniority until 31 December 2013 and the second on the seniority as from 2014, as described hereabove.
For the first part, the historical calculation applies, which means 1 month per started year seniority for white-collar employees earning at least 32.254,00 EUR gross on 31 December 2013, with a minimum of 3 months. For the white-collar employees earning less than 32.254,00 EUR gross on 31 December 2013, the notice period is equal to 3 months per started period of 5 years’ seniority. For the blue-collar employees, the historical notice periods determined at sectoral level of industry applies. These notice periods are shorter than the ones for white-collar employees.
Different notice periods may apply in specific circumstances, as for instance, reaching the statutory retirement age.
Is it possible to pay monies out to a worker to end the employment relationship instead of giving notice?
The employer can pay an indemnity in lieu of notice corresponding to the remuneration (and benefits) the employee would be entitled to in case of dismissal with a notice period to be served.
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 say at home and not participate in any work?
Garden leave is not allowed under Belgian law. If the employer forces garden leave on the employee, this will constitute a constructive dismissal, providing the opportunity to the employee to immediately ask for the indemnity in lieu of notice he is entitled to in its entirety. A garden leave clause in the employment contract is therefore null and void.
With the consent of the employee, the employer can nevertheless foresee a garden leave arrangement in the framework of the termination of the contract.
Does an employer have to follow a prescribed procedure to achieve an effective termination of the employment relationship? If yes, describe the requirements of that procedure or procedures.
If the employer wants to dismiss the employee with a notice period to be served, he must do it by registered letter taking effect after three working days or by bailiff notification. The letter must contain the beginning and the duration of the notice to be served (not the end because the notice period can be suspended e.g. in case of sickness). The notice period takes effect as from the next Monday after the week during which it is served to the worker.
There is no formalism for a dismissal with immediate effect and payment of an indemnity in lieu of notice.
If the employee is dismissed for serious cause, i.e. with immediate effect and without payment of an indemnity in lieu of notice, the employer must notify the dismissal by registered letter or serve it by bailiff in the three working days (Saturday included) after his knowledge of the reasons justifying the dismissal for serious cause. The reasons for the dismissal must be notified in the same way (registered letter or bailiff) in the three following working days. The employer can also decide to notify the dismissal and the reasons for the dismissal in the same letter, that must therefore be sent in the first three-day period.
Specific procedures may apply, for instance for employees’ representatives in the works council, health and safety committee or union delegation. At sectoral level, it is also possible to foresee a procedure before dismissing an employee.
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 formalism of the dismissal with a notice period to be served or of the dismissal for serious cause is not respected, the employee will be immediately entitled to an indemnity in lieu of notice.
In case the employer does not respect the applicable specific procedures for dismissal, it will have to pay extra indemnities. For employees’ representatives at works council of health and safety committee, the extra indemnity can amount to 8 years’ salary. The employee’s representative can alternatively ask his reintegration to the company and the payment of his remuneration lost in the meantime.
How, if at all, are collective agreements relevant to the termination of employment?
Before 1 January 2014, the notice period to be respected for the blue-collar workers were most of the time determined at sectoral level. Therefore, these sectoral CBA’s remain important for the calculation of the first part of the notice period as described under question 4.
Some sectors also foresee a kind of job security, which implicates having to follow a procedure before dismissing an employee. If this procedure is not respected, most of the time, an extra indemnity is foreseen.
Does the employer have to obtain the permission of or inform a third party (eg 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?
As general rule, the employer is free to decide on the dismissal of an employee.
In certain circumstances, as collective dismissals or for protected employees (e.g. employees’ representatives), the employer must notify/ask permission to dismiss the employee. If it does not respect this obligation, it will have to pay an extra indemnity.
What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?
The employee who files a complaint for discrimination is protected against dismissal or prejudicial measures. The protection begins as from the date of the complaint until 12 months hereafter. In case of legal proceedings, the employee is protected until a final decision is rendered by a court. If the employer cannot prove that the measure is not linked to the complaint, the employee is entitled to an indemnity of 6 months’ remuneration or the indemnification of the real loss suffered.
Similar rules apply in case of complaint or legal proceedings related to harassment or violence at work. The particularity is that the complaint for harassment or violence must be filed by the prevention advisor specialised in psychosocial risks of the company. In case of discrimination, a complaint to the hierarchical line is sufficient. If the internal procedure for psychosocial risks is not a compliant, a complaint introduced by the social inspectorate or the police will also protect the employee. Even if the prevention advisor considers, after its investigation, that there neither harassment nor violence, the employee is still protected during the period of 12 months or the legal proceedings.
What are the possible consequences for the employer if a worker has suffered discrimination or harassment in the context of termination of employment?
The complaint for harassment, violence or discrimination protects the employee from detrimental measures. If the employer cannot prove that the dismissal is not linked to the complaint, he will have to pay an indemnity of 6 months’ salary (or the real loss suffered).
Moreover, if the court considers that there was indeed harassment, violence or discrimination by the fault of the employer, the employee is entitled, on top of the protection indemnity, to an indemnity of 6 months, salary because of the harassment, violence or discrimination. The salary to be considered in case of harassment or violence is capped at 35.652,45 EUR per year (amount as from 1 January 2018, subject to annual indexation).
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?
Employees on thematic leave (e.g. parental leave, career break etc.) are protected against dismissal because of their leave. Pregnant women and other employees in specific situations are also protected against dismissal. If the employer cannot prove that the dismissal is not linked to their protected situation, he will have to pay an indemnity (most of the time, 6 months’ remuneration). The motivation of the reasons for dismissal are in this view important.
Are workers who have made disclosures in the public interest (whistleblowers) entitled to any special protection from termination of employment?
Whistle-blowers are not protected as such under Belgian law. They can refer to the regular rules on unfair 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?
If the employee is dismissed by a notice period to be served, he will receive his salary (and benefits) during this period and will not receive any extra compensation.
If the employee is dismissed with an indemnity in lieu of notice, the duration of the notice period will be legally determined (see question 4). The eventual discussion will focus on the valorisation of the different benefits, i.e. private use of the car, extra insurances, bonus, etc.
In case of termination, the employee will also be entitled to vacation pay, pro rata end of year of premium and variable pay on pro rata of the performance during the year, and the salary of public holidays falling in the 30 days after the end of the contract.
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.
The employer and the employee can terminate, by agreement, the employment contract (with or without indemnity). The employee could nevertheless be sanctioned by the unemployment office because he has voluntarily left his employment.
An alternative is to conclude a settlement agreement after the dismissal of the employee, who will no longer be in a link of subordination towards the employer and therefore can validly waive certain rights. The validity of the settlement agreement depends on mutual concessions by the parties.
Is it possible to restrict a worker from working for competitors after the termination of employment? If yes, describe any relevant requirements or limitations.
For employees earning more than 68.361,00 EUR per year (amount as from 1 January 2018, subject to indexation), a non-competition clause can be inserted into the employment contract. Its validity is subject to four conditions: (i) to concern similar activities, (ii) to be geographically limited to places with a real risk of competition (at a maximum the Belgian territory), (iii) to be limited to 12 months as from the end of the employment contract, (iv) to foresee the payment of an indemnity (at least the remuneration of half of the period under (iii)).
The employer can renounce the non-competition clause in a delay of 15 days as from the termination of the employment contract. Moreover, the clause remains without effect if the contract is terminated during the first six months of employment, or after this period by the employer without serious cause.
In case of breach of the clause by the employee, he will have to reimburse the indemnity perceived and pay an equivalent indemnity to the employer, without prejudice to the reparation of the real loss suffered.
There is also a derogatory non-competition clause, which is applicable to companies with (i) an international activity field or important economical, technical or financial interest in the international markets or (ii) having their own research service. For these companies, it is possible to provide that the clause will take effect during the first six months or in case of dismissal with notice period/indemnity of notice.
Can an employer require a worker to keep information relating to the employer confidential after the termination of employment?
Employment law foresees that an employee cannot, during the contract and after its termination, disclose manufacturing or business secrets, or personal or confidential information he is aware of because of his employment.
Are employers obliged to provide references to new employers if these are requested?
The social documents to be given at the end of the employment contract are determined by law. It concerns (i) the work certificate mentioning the beginning and the end of the contract, and the nature of work done, (ii) the payslips and tax form, (iv) the certificate for unemployment benefits and (v) the vacation attest. There is no obligation to provide other documents.
What, in your opinion, are the most common difficulties faced by employers when terminating employment and how do you consider employers can mitigate these?
It is difficult, in case of dismissal, to be able to prove the reasons of the dismissal. If these are related to the employee, it is necessary to have regular assessments and to send written warnings in case of misconduct. If the reasons are economical or technical, the employer must be able to document them.
Are any legal changes planned that are likely to impact on the way employers approach termination of employment? If so, please describe what impact you foresee from such changes and how employers can prepare for them?
Currently, there are discussions to reform the legislation on collective dismissals by foreseeing an information phase open to elected politicians, with the possibility to invite the CEO to parliament in order to offer explanations on the envisaged collective dismissal, an obligation to conclude a social and financial plan, and also higher indemnities for employees. However, there is no consensus for the moment to modify the legislation in this way.