Employment Update, Belgium - June 2007

28 June 2007

Olivier Rijckaert

New legislation

New Discrimination Acts of 10 May 2007

In order to harmonise Belgian legislation with the European Directive, important changes have been made to the non discrimination legislation in Belgium.

This new anti-discrimination legislation includes three separate acts, concerning respectively (i) general discrimination, (ii) discrimination based on gender and (iii) discrimination based on race. The material scope of all three sets of legislation is identical. It applies to access to goods and services, social security and health care, social benefits, complementary social security regimes and employment etc. The scope of prohibited discrimination extends to: age, sexual orientation, civil status, birth, fortune, religious, philosophical and political convictions, language, present or future state of health, handicap, physical or genetic characteristics and social origin. The legislation prohibits direct and indirect discrimination, and provides for injunctive relief against discrimination and harassment, where such harassment is based on discrimination. It also explicitly sanctions the refusal to make reasonable adjustments in the workplace in favour of a disabled person. Civil and criminal sanctions apply to the infringement of the discrimination legislation. In the field of civil sanctions, the most important are undoubtedly the victim’s ability i) to start summary injunction proceedings to put a stop to the discriminatory behaviour and ii) to initiate proceedings to obtain a lump sum indemnity for the damages incurred. It is also important to mention that victims who start these kind of proceedings are protected against the termination of their employment contracts.

Welfare of employee – violence, moral and sexual harassment

Belgian employment legislation contains specific provisions concerning violence and moral and sexual harassment at work. Four years after the implementation of these provisions, the main objective of the law had not fully been achieved and there were still some uncertainties which required some important modifications to be made. Those modifications emphasise the prevention of violence, moral and sexual harassment and explicitly mention the prevention measures which are required. The meaning of the “confident person” (“personne de confiance”) is adjusted and the use of company internal procedures is promoted. As such, a judge who must rule in a harassment case can suspend the judicial procedure, in order to force the victim to go through the applicable company’s internal procedures before allowing the judicial procedure to continue.

Definitive incapacity for work

In general, the employment contract of an employee who is declared definitively incapable of performing the agreed work may be terminated without providing a notice period or a severance payment (termination due to an “Act of God”). The Act of 27 April 2007 has made these kind of terminations far more difficult. From now on, the employees’ incapacity to work cannot be certified solely by his/her physician but must be certified or confirmed by the company’s doctor. If the employee is declared definitively incapable of working in his/her current position, the employer must keep him/her employed by providing alternative work or by making necessary adjustments to the employee’s current position. However, the employer will be exempted from this obligation if such alternative arrangements/adjustments are technically and objectively impossible. Consequently, an employment contract can only be terminated for reasons of definitive incapacity to work if an adjustment to the employment conditions is impossible or cannot be required under the circumstances; if the employer is not in a position to offer the employee an alternative position, or if the employee refused such alternative position. Finally, the Social Inspectorate must confirm the employee’s incapacity before the employment contract can be terminated.

Case update

Severance payment and lodging expenses

In its ruling of 10 January 2007, the Employment Court of Brussels confirmed that “lodging expenses” paid to an expatriate employee must not be included in the calculation of the severance payment. Indeed, the amounts that are paid to an expatriate employee in order to cover real additional expenses linked to the performance of the employment abroad must not be considered as remuneration. In this case, the employee could benefit from a monthly lump sum reimbursement of lodging expenses of approximately 850 EUR on top of a lump sum reimbursement of expenses of 250 EUR. The Court was of the opinion that these amounts were reasonable and therefore covered real expenses that did not have to be included in the calculation of the severance indemnity.