In Belgium, the language rules for the use of documents in social relations (from employers to employees) are very strict and of public order. In Flanders, the relevant rules are set out in the Flemish Language Decree of 19 July 1973. A common issue are employers, that are part of an international group, that set up their bonus plan or stock option plan on a group-wide basis and only in English.
1. In principle: null and void
In the case at hand, an employee had claimed the nullity of certain conditions regarding the acquisition of stock options contained in documents (plan and grant letters) drafted by the employer in English only. In accordance with Article 5, §1 of the Language Decree, these documents had to be drawn up in Dutch, although §2 allows an additional version in another language. Since the documents were not drawn up in Dutch, they are (ex officio) null and void according to Article 10, paragraph 1 of the Language Decree.
2. Can an employee still make a claim based on the document?
However, the fifth paragraph of this article clarifies, "the annulment cannot cause any harm to the employee and does not affect the rights of third parties. The employer is liable for the damage caused by its null and void documents or acts to the detriment of the employee or third parties." There are different interpretations of this provision in the lower case law:
- According to a first view, it means that the employee can still derive rights from the void document.
- According to a second view, the employee cannot, but the employee will only be able to claim damages for the harm suffered (which he must prove).
The labour court of appeal had followed the first view, while the employer adhered to the second interpretation. The Supreme Court cut the Gordian knot and confirmed the labour court's interpretation: namely, that the employee can still rely on the document and therefore does not have to act via the detour of claiming compensation based on damages. It thereby confirms that the nullity of the Language Decree is a specific form of nullity and should not be considered in the same way as the general nullity sanction (which would support the second interpretation).
3. Cherry-picking
Obviously, the question arises to what degree the employee can still base a claim on a document that is declared null and void. The Supreme Court unfortunately does not enter into detail. In the case law, in general "cherry-picking" by the employee is not accepted, in which case the employee only "picks" the parts that suit him in a way that could seem abusive. To clarify this concept, we refer to the case at hand. The Labour Court of Appeal of Antwerp has stated in its judgement of 3 October 2017 (which was the subject of the ruling of the Supreme Court) that the employee can rely on the provisions of the void document that are advantageous to him while he can invoke nullity for the provisions that are disadvantageous to him. However, the Labour Court of Appeal adds, this needs to be nuanced: the employee cannot make a selective use of the nullity of certain clauses in such a way that it deprives the document of all meaning. The Advocate-General at the Supreme Court has further clarified this element in his opinion, stating: "If an employee wishes to invoke a clause favourable to him, he must observe the entire clause. He cannot, in one and the same clause, withhold certain parts and set others aside. After all, a clause forms one whole. An example clarifies this. If a clause provides for a bonus plan and the same clause includes a condition, e.g. working until a certain date in the relevant calendar year, the employee cannot rely solely on the bonus aspect and leave aside the time provision aspect, which is detrimental to him." Therefore, it seems that although the Supreme Court has not explicitly stated anything about "cherry picking", it feels safe to say that it will not be accepted. Nevertheless, there can still be a discussion on which use of Article 10, §5 of the Language Decree constitutes cherry picking and which does not. To refer to the example of the Advocate-General: what if the presence condition is not part of the same provision, but is laid down in a completely different clause? Is this still cherry picking or not? The last word in this discussion has not yet been said.
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.
