1 Legal framework

1.1 Are there statutory sources of labour and employment law?

Yes. The primary sources of labour and employment law are statutory laws, such as:

  • the Act on Employment Contracts (1978);
  • the Labour Act (1971), on working time and conditions;
  • the Act on Collective Bargaining Agreements and Joint Committees (1968); and
  • the Act on Annual Holidays (1971).

Belgian employment law operates under a strict hierarchy of sources of law. These include:

  • mandatory statutory law over collective bargaining agreements rendered binding by royal decree;
  • collective agreements to which the employer is a party;
  • individual written employment contracts;
  • non-binding collective agreements;
  • work regulations;
  • non-mandatory legislation;
  • individual oral contracts; and
  • customs.

The higher source overrules the lower unless the higher source sets forth only minimum standards from which the employer can deviate in favour of the workforce (eg, regarding weekly working time).

1.2 Is there a contractual system that operates in parallel, or in addition to, the statutory sources?

Yes. As employment contracts are a specific kind of civil law contract, the basic principles of general contract law also apply, unless overruled by specific labour law provisions that seek to protect the employee. See the hierarchy of sources of law set out in question 1.1. Hence, while force majeure can free both parties from their obligations under general contract law, an employment contract can be terminated on account of force majeure only under specific stringent conditions – that is, on the conclusion of a process whereby an occupational health specialist has duly established the employee's inability to perform the contract.

1.3 Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?

Yes. Employment contracts are commonly used from the lowest level employee up to the chief executive officer (CEO) of the company. However, people with higher managerial functions (eg, CEO, chief financial officer) may prefer to work as self-employed under the terms of a management/consultancy contract, either under their own name or via a self-owned management/consultancy services company. Contracts can be for a definite period (or a specific project) or an indefinite period. The former, as well as part-time contracts, must be in writing and clearly set out respectively the duration of the contract and the scope of the part-time contract. Failure to abide by the strict rules leads to the ‘default position' – that is, a full-time contract for an indefinite term. If a contract is not in writing, it will be presumed to have been entered into for an indefinite period of time and on a full-time basis. Any contractual clause that would impose additional obligations on the employee or restrict employee rights beyond the limits set out in the Act on Employment Contracts will by law be deemed null and void.

2 Employment rights and representations

2.1 What, if any, are the rights to parental leave, at either a national or local level?

Parental leave – that is, the right to interrupt one's professional career to look after a child before he or she reaches the age of 12 (or 21 for disabled children) – is awarded to workers in most sectors of industry.

2.2 How long does it last and what benefits are given during this time?

Depending on the sector of industry, benefits may vary, but overall a full-time or part-time employee can take four months' leave. A full-time employee can also choose to work part time over a period of eight months, or work four days per week over a period of 20 months (one-fifth decrease), or half a day every week/one day a fortnight (one-tenth decrease). The employee may be entitled to (lump-sum) benefits paid by the National Employment Office.

2.3 Are trade unions recognised and what rights do they have?

Yes. In addition to some sector-specific trade unions, there are three major trade unions (Socialist, Christian and Liberal) which by law are deemed representative in Belgium, because they operate in all business sectors and have a minimum threshold of members. They have the authority to engage in negotiations with employers' representative organisations on a national, sectoral and company level.

2.4 How are data protection rules applied in the workforce and how does this affect employees' privacy rights?

The EU General Data Protection Regulation (GDPR) governs data protection in the workplace, in conjunction with the Belgian Act of 30 July 2018, which incorporates elements of the GDPR that allow for member state specifications or restrictions. The employer has the authority to process employees' personal data, provided that:

  • this is done for a well-defined, clearly described and justified reason (eg, online communication is monitored to protect the safety of the company network);
  • no more data is processed than is required (eg, camera surveillance is used only where necessary and not in the workers' dining area);
  • the data is processed in a transparent manner (ie, employees are informed of how and why their data is processed); and
  • the employer keeps a data processing register.

2.5 Are contingent worker arrangements specifically regulated?

All workers are either employees of the company or self-employed service providers. Temporary agency work is strictly regulated under Belgian law. Only officially registered agencies are allowed to act as intermediaries by procuring temporary agency workers to employers. The leasing of personnel and any other forms of tripartite employment relationships in which employer authority is delegated to or shared by both employer and user of the employee are in principle forbidden.

Failure to abide by the rules on temporary agency work can entail serious civil and criminal liabilities for both users and procurers of workers.

3 Employment benefits

3.1 Is there a national minimum wage that must be adhered to?

The average guaranteed national minimum wage for 2021 amounts to €1,625.72 (gross – therefore, subject to tax and social security contributions).

3.2 Is there an entitlement to payment for overtime?

Yes. If workers perform overtime work on a Sunday or national bank holiday, they are entitled to double their normal wages, and for overtime work on Saturdays a bonus of 50% is due. Overtime work is remunerated by allowing the employee to take equivalent time off while being paid a bonus of 50% or 100% of normal wages, as the case may be.

3.3 Is there an entitlement to annual leave? If so, what is the minimum that employees are entitled to receive?

Yes. All workers are entitled to annual leave; the minimum is 20 days for one full year of work. As a general rule, the right to the next year's holidays accrues throughout the calendar year, so work in the first year allows an employee to take annual leave in the second year.

3.4 Is there a requirement to provide sick leave? If so, what is the minimum that employees are entitled to receive?

Yes. The first month of absence from work on account of sickness for white collar employees is paid by the employer (so-called ‘guaranteed wages'). Beyond that, the employee will be entitled to allowances paid by the employee's health insurer under the national social security scheme.

3.5 Is there a statutory retirement age? If so, what is it?

The normal statutory retirement age is 65. It will increase to 66 in 2025 and 67 in 2030. Specific categories of workers may be entitled to early retirement, provided that specific age and career conditions are met.

4 Discrimination and harassment

4.1 What actions are classified as unlawfully discriminatory?

Any action whereby a person is treated differently on the basis of one of the 19 protected criteria (see question 4.2.), some of which are EU-law driven and others domestically regulated, either directly or indirectly, where a seemingly neutral action/policy that applies to all, will disadvantage people who share a protected characteristic. Active discrimination is sanctioned, as well as incitement to discriminatory practices, intimidation and refusal to introduce reasonable adjustments (for persons with a disability).

4.2 Are there specified groups or classifications entitled to protection?

The law forbids discrimination on numerous protected criteria:

  • five ‘racial' criteria (presumed race, skin colour, nationality, ancestry (Jewish origin) and national or ethnic origin);
  • disability;
  • philosophical or religious beliefs;
  • sexual orientation;
  • age;
  • wealth (financial resources);
  • civil status;
  • political beliefs;
  • trade union membership;
  • current or future state of health;
  • physical or genetic characteristics;
  • birth;
  • social background;
  • gender (men/women/trans/fatherhood/co-motherhood, adoption, medically assisted reproduction, gender-characteristics and breastfeeding); and
  • language.

4.3 What protections are employed against discrimination in the workforce?

The Anti-Discrimination Act and the Anti-Racism Act of 2007 provide for lump-sum compensation (six months' wages) or more if the actual damages can be proven, for any worker who is the victim of discrimination on the basis of the protected criteria of the Act of 2007. The Gender Act of 2007 offers a similar form of protection against discrimination on account of:

  • gender;
  • motherhood;
  • change of sex/gender; or
  • gender expression.

Moreover, injunctive relief and compensatory ‘levelling up' to the level of benefits of the favoured group or persons are possible.

Furthermore, Collective Bargaining Agreement 95 explicitly states that workers must be treated equally throughout all the stages of the employment relationship. Collective Bargaining Agreement 38 specifically prohibits discrimination during the recruitment process.

On a regional level (Flanders), similar provisions have been enacted regarding career choices, career advancement and professional training, where discrimination is also forbidden.

4.4 How is a discrimination claim processed?

In most cases, employees will lodge an informal complaint, either with the employer, with the HR department or, where the employee is the victim of, for example, racial harassment, with a confidential councillor. If no solution can be reached on an informal basis, the employee may decide to lodge an official complaint.

4.5 What remedies are available?

A person who considers himself or herself to be the victim of discrimination in the workplace can file a complaint with the police or the public prosecutor. If discriminated against on the grounds of race, disability, the employee may file a complaint with the Federal Agency for Equal Opportunities (Unia). Acting first as a mediator to resolve the complaint amicably, Unia may decide to file proceedings on behalf of the employee before the courts if no agreement can be reached. Trade unions will act before the courts on behalf of their members and initiate legal proceedings, often with the assistance of Unia. Similarly, the Federal Institute for Gender equality will assist people who consider that they have been discriminated against based on their gender. Social Inspectorate services are also competent to initiate mediation proceedings between employer and employee where the employee is the victim of discrimination when applying for a job or in the course of the employment contract.

4.6 What protections and remedies are available against harassment, bullying and retaliation/victimisation?

Under the Act of Wellbeing of 1996 (as amended), violence, harassment and bullying are considered psycho-social risks that may occur in the workplace. Every employer has a duty to protect its workers against harassment and bullying by taking preventive actions (risk assessment), providing training and setting up helplines with confidential councillors whom workers can contact if they are the victim of such inappropriate behaviour. The workers can opt for either:

  • an informal procedure whereby a confidential councillor will seek to mediate and resolve the issue; or
  • a formal complaint filed with the confidential councillor or the authorities (Social Inspectorate services or the public prosecutor).

A worker who files an official complaint is protected against dismissal until three months after the complaint proceedings have been closed. If terminated in spite of this protection, an additional indemnity (on top of the normal severance pay) of six months' wages (or more, depending on the actual damages suffered and proven by the worker) will be due.

5 Dismissals and terminations

5.1 Must a valid reason be given to lawfully terminate an employment contract?

There is no general obligation for employers to give a valid reason for a dismissal. However, for most categories of personnel who are protected against dismissal on punctual grounds (there are about 15 such categories, including employees on all kinds of leave), the employer must have sufficient grounds or grounds unrelated to the punctual protection available when proceeding with termination, lest specific damages may be due.

In general, beyond such punctual protection, if the employee lodges an official request to be informed of these reasons and all other conditions of collective Bargaining Agreement 109 on the motivation of dismissals and blatantly unfair dismissal are met (eg, a contract of at least six months' duration), the employer must set out these reasons in writing within two months of the employee's request. These reasons must relate to the employee's behaviour or aptitude, or to the economic necessities of the company. If the employer cannot provide sufficient evidence of these reasons and the judge considers that no normal and reasonable employer would have terminated the contract under the circumstances of the case, the employee may be entitled to additional lump-sum compensation ranging from between three and 17 weeks' notice on account of ‘blatantly unfair dismissal'.

5.2 Is a minimum notice period required?

Yes. Statutory notice periods apply that accrue with the employee's length of service from a minimum of one week (less than three months' seniority) up to eight weeks (as of one years' seniority) up to a maximum of 62 weeks (20 full years' seniority) and one extra week henceforth. For employees who were in service prior to 2014, an additional notice period is to be observed which differs substantially between blue-collar and white-collar employees.

5.3 What rights do employees have when arguing unfair dismissal?

Other than a claim based on ‘blatantly unfair dismissal' (see question 5.1.), employees can request lump-sum compensation in cases where the employer has abused its right to terminate the contract – for example, by causing unnecessary duress to the employee (humiliating him or her in front of his or her colleagues) or dismissing the employee in an act of retaliation. Depending on the circumstances of the case, lump sums in the order of €2,500 to €10,000 have been awarded.

5.4 What rights, if any, are there to statutory severance pay?

If the employer fails to serve the legal notice period or decides to terminate without notice, severance pay equivalent to full remuneration (salary plus all benefits) for the statutory notice period will be due.

6 Employment tribunals

6.1 How are employment-related complaints dealt with?

All employment-related complaints must be brought before the Labour Court of First Instance and the Labour Court of Appeal. Subject to certain exceptions, arbitration as dispute resolution mechanism is not allowed in employment-related matters.

6.2 What are the procedures and timeframes for employment-related tribunals actions?

Procedures are initiated either by:

  • having a bailiff serve a writ to the opposing party; or
  • submitting the writ to the Labour Court of First Instance.

Within a few weeks of submission, an introductory hearing will take place, at which the parties will submit the time schedule that they have agreed upon for submission of their briefs. Assuming that the defence submits three sets of submissions (one in reply to the writ, one additional in reply to the plaintiff's first set of submissions and one final set in reply to the plaintiff's second set of submissions), it usually takes between eight and 12 months, depending on the complexity of the case, for the proceedings to complete at first instance. A similar or somewhat longer timeframe is to be expected for proceedings on appeal.

7 Trends and predictions

7.1 How would you describe the current employment landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Over the past 12 months, most government efforts have focused on managing the pandemic. The negative economic impact of the mandatory closure of certain business has to a large extent been mitigated via the quite generous COVID-19 furlough scheme. Through this scheme, unemployment benefits are granted not only to employees who cannot work on account of the closure of the company or a reduction in their employer's business activities, but also to employees who find themselves unable to work from home due to childcare obligations because of school and day-care centre closures. As the vaccination programme starts picking up speed, we can expect the government to focus on achieving the goals it set out in the government programme of 2020, such as:

  • improving work/life balance;
  • increasing the employment ratio through continued learning schemes;
  • promoting the access of disabled, older and/or socially disadvantaged workers into the employment market; and
  • encouraging long-term sick workers back into employment.

8 Tips and traps

8.1 What are your top tips for navigating the employment regime and what potential sticking points would you highlight?

Belgian labour law has a reputation as being rigid and very protective of employees' interests. There are certainly some issues with limited flexibility (eg, through vested rights, on working conditions, protection of salary conditions, collective rights), and strong protection of workers' interests in comparison with neighbouring countries (eg, the protection against dismissal granted by law to members of representative bodies such as works councils is quite prohibitive). Nevertheless, in a number of respects, Belgian law does allow for a degree of flexibility or accommodation which should suit management – for instance, in terms of the ease with which termination of employment can be effected and the level of assistance for vocational training. The world-renowned productivity of the Belgian workforce, their cultural flexibility and generally high educational background, including multilingual capabilities, are all assets that the country is rightfully proud of. Provided that management accepts that trade unions are a societal force to reckon with (and even better to cooperate with), and acknowledges that labour protection comes with a price (‘hire and fire' can be effected swiftly if the price of indemnification is paid), potential sticking points can be readily handled with professional, hands-on legal assistance.

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