If an employee lodges a complaint for violence, harassment or sexual harassment on the work floor, (s)he is protected against dismissal during a specific period (12 months as from the complaint and until 3 months after a final judgment if the case was brought before a court). If the employment contract is terminated during this protection period, the employer must prove that the employment contract was terminated for reasons unrelated to the complaint of the employee.
A controversy arose as to when the protection period starts. Some employees try to obtain protected status as soon as they fear that their employment contract may be terminated and preemptively file a complaint for violence, harassment or sexual harassment on the work floor prior to such a termination.
In some cases, the employers had not yet been informed about the complaint and terminated the employment contract. After the termination, the employee claimed a protection indemnity (equal to 6 months' salary).
Despite the fact that the employers were unaware of the complaint at the time of termination and that the reason(s) for termination could thus not be linked to the complaint, some labour courts held that the employee was entitled to the protection indemnity. These courts reasoned that the employer "should have been aware" that a complaint was about to be filed by the employee if the employee had already mentioned being harassed and if the employer failed to prove that the employment contract had been terminated for reasons unrelated to the complaint.
In its judgment of 3 March 2014 (S.12.0110.F), the Supreme Court (Hof van Cassatie/Cour de Cassation) confirmed a judgment of the Labour Court of Appeals of Liège, section Neufchâteau, regarding the starting date of the protection period against dismissal. In the case before that court, an employee had informed the prevention advisor about harassment on the work floor and the prevention advisor had informed the employee that he could lodge an official complaint in accordance with applicable rules. The employment contract was terminated and one day later the employee filed his formal complaint with the prevention advisor.
The Supreme Court held that, based on the then applicable version of the Law of 4 August 1996 regarding the well-being of employees during the performance of their work (Wet betreffende het welzijn van de werknemers bij de uitvoering van hun werk/Loi relative au bien-être des travailleurs lors de l'exécution de leur travail – the Law of 4 August 1996), the starting date of the protection period is not the date of the lodging of the complaint, but the date on which the employer was informed about the complaint.
Recently, the Law of 4 August 1996 was modified by the Law of 28 February 2014 completing the Law of 4 August 1996 regarding the well-being of employees during the performance of their work concerning the prevention of psycho-social risks on the work floor, including violence, harassment and sexual harassment on the work floor (Wet tot aanvulling van de wet van 4 augustus 1996 betreffende het welzijn van de werknemers bij de uitvoering van hun werk wat de preventie van psychosociale risico's op het werk betreft, waaronder inzonderheid geweld, pesterijen en ongewenst seksueel gedrag op het werk/Loi complétant la loi du 4 août 1996 relative au bien-être des travailleurs lors de l'exécution de leur travail quant à la prévention des risques psychosociaux au travail dont, notamment, la violence et le harcèlement moral ou sexuel au travail). As a result of this change, the employees are protected as from the moment on which the complaint is accepted by the prevention advisor. This new rule does not apply to dismissals that occurred prior to 1 September 2014. For those dismissals, the above judgment of the Supreme Court remains relevant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
