Employment Update, Belgium - February 2007

12 February 2007

Olivier Rijckaert

New legislation

An employer’s right to search employees: The National Employment Council has issued a proposal to modify the conditions governing the circumstances when an employer can carry out searches of employees leaving the company premises. As the law currently stands, only companies mentioned in a Ministerial Decree, which deal with matters or objects that represent a special risk to society can carry out such searches. The new proposal will extend the option to search to all companies, provided certain conditions are adhered to. Such searches can only take place “at random” or if based on a suspicion of theft and in both cases, the consent of the employees concerned is required. In the case of random searches, the consent can be given collectively, through the Union Delegation or the Works Council. If there is a suspicion of theft, the consent of the individual is required. The extent of the search is limited to the objects carried by the employee, his car and/or his luggage. According to the advice from the National Employment Council, the right to search no longer extends to the employee’s clothing.

A collective bargaining agreement must be executed to ensure the searches are carried out in a manner which respects the privacy of the individual.

Whistleblowing: The recommendation of the Privacy Commission (29 November 2006) states that whistleblowing procedures are reconcilable with the Privacy Act of 8 December 1992. Whistleblowing procedures enable an individual to report suspicious behaviour of other employees which, according to the individual, conflicts with legislation or is against the rules of the company. A whistleblowing procedure inevitably involves the processing of personal data of the parties involved.

When a company introduces such a procedure, it should ensure that it respects the principles of loyalty, proportionality and transparency, as mentioned in the Data Protection Act and should make sure that the individual’s personal data is not used for any other purposes.

Finally, prior to the introduction of a whistleblowing procedure, resulting in an automatic treatment of personal data, the employer must inform the employees and make a declaration to the Privacy Commission.

Preliminary declaration for seconded and self-employed workers: From 1 April 2007, foreign companies who wish to second an employee to Belgium will be under an obligation to file an electronic declaration at the social security administration prior to the commencement of the secondment. This obligation to file rests with the employer of the secondee or with the self-employed worker himself. The legislation provides that a Royal Decree may exclude specific categories of workers from the scope of application. Whenever an employer (or a self-employed worker) has made a declaration, he will receive an acknowledgement of receipt from the social security administration. The end user of the services provided by the secondee or self-employed worker will have an obligation to verify that the worker is in possession of the receipt, after filing their declaration. If this is not the case, the end user must communicate the identification data of the concerned worker to the social security administration.

The non observation of these rules can give rise to administrative or criminal sanctions.

Case update

Discrimination in recruitment: In its decision of 30 November 2006, the employment tribunal of Brussels ordered the cessation of discriminatory behaviour by an employer who refused to hire an employee due to her being epileptic. The employee concerned was already working for her employer under a replacement contract and when she applied for a position of indefinite duration and was deemed suitable for work by the prevention advisor (all enterprises in Belgium have to appoint a 'prevention adviser' with skills in the psycho-social aspects of work and of violence at work). From the wording adopted in the rejection letter, the employee concluded that the rejection was directly linked to her health situation and began proceedings before the employment tribunal in an attempt to prevent future discriminatory behaviour. The employment tribunal deemed that the employee had established a presumption of discriminatory behaviour by the employer. The tribunal ordered the employer to stop discriminating against the employee on the grounds of her health (both present and future) when recruiting, renewing her employment contract and when defining the employment/ termination conditions.