Employment Update Belgium November 2006

22 November 2006

Olivier Rijckaert

New legislation

Age Discrimination: The Act of 20 July 2006 amends the age-related provisions of the Non-Discrimination Act 2003. The new Act states that a difference in treatment based on age no longer constitutes discrimination if that treatment is reasonably and objectively justified as a legitimate aim. Examples of legitimate aims include employment policies or the general employment situation on the market. The Act implements into Belgian law an exception that was already contained in Directive 2000/78/EC. The Act also provides that it is not discriminatory to set a fixed age at which an individual becomes entitled to retirement or invalidity benefits, or for occupational social security schemes. The purpose of the new regulations, which came into force on 7 August 2006, is to allow specific measures aimed at promoting the employment of older workers.

Outplacement for older employees: All employees over the age of 45 are entitled to undertake an outplacement procedure paid for by their former employer on termination of their employment contract (except in the case of serious cause). Since 1 July 2006 employers must inform employees in writing no later than the date of termination of their right to outplacement. If the employer does not comply with this obligation he must indemnify the employee for €1.800 and pay an additional administrative fine of €1.800.

Personal liability of directors for tax and social security debts: Since 1 September 2006 all directors of companies and non-profit organisations may be held personally liable for VAT and social security debts of their company in certain circumstances. This includes a situation where a company has repeatedly defaulted in making VAT and social security payments. This also applies in the case of bankruptcy of a company if it can be proved that the bankruptcy resulted from serious fault.

New powers for the Social Inspectorate: On 1 September 2006, the Social Inspectorate gained new investigative powers. Inspectors now have the right to search all of an employer’s electronic and magnetic storage devices (such as computers, networks and other mass storage devices) and to take a copy of all data that they hold concerning the employees. The storage devices can be taken into custody if the employer objects to the Inspectors taking a copy.

Sport and culture voucher: Since 1 July 2006 employers have the right to grant employees a sports or culture voucher. These vouchers provide employees with access to sporting or cultural activities and infrastructures up to a maximum value of €100 per year. The vouchers are exempt from taxation or social security contributions provided that they are not granted in replacement of salary.

Case update

Self-employed vs. employee relationship: In its order of 22 May 2006 the Supreme Court decreed that even if parties define their relationship as being self-employed, an employment tribunal may still find that an employment relationship subsists if the nature of the relationship indicates as such. Factors that may indicate that an employment relationship subsists include the giving of detailed instructions to employees in respect of the way in which work is to be performed; the requirement for authorisation to take holiday; and the unilateral defining of employment conditions.

Attorney fees: in its judgment of 3 May 2006 the Employment Court of Brussels ordered that an employer must pay an employee’s attorney fees in the case of constructive dismissal. An employer must indemnify the employee for the entire period of prejudice, including attorney fees incurred by an employee in respect of the matter.