Which issues would you most highlight to someone new to your country?
Belgium has strict procedures and notice periods for dismissal which make it difficult to dismiss employees. As such, employers must be cautious, well informed and prepared in case of a pending dismissal because a mistake can cost a company dearly.
Employers should also pay close attention to the rules on working time, as while these are employee friendly, they allow for flexibility if the right exception is used.
What do you consider unique to those doing business in your country?
Belgian labour law is characterised by stringent language regulations. All labour documents and labour-related communications with employees must be conducted in either Dutch, French or German, depending on the location of the employer’s operating unit. If employers fail to do so, any relevant materials will be considered null (with the exception of the Brussels and German regions, where failure to comply will result in the document being replaced).
Is there any general advice you would give in the employment area?
Where applicable, employers should try to create a constructive relationship with employee representatives from the relevant trade union delegation, as collective disputes can seriously affect a business.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
The last government and relevant social partners (ie, trade unions and employers’ organisations) were/are working on a modal shift in worker mobility from traditional company cars to more eco-friendly modes of transport (eg, electronic cars, public transport and bicycles). It is likely that a future government will continue these efforts.
That said, it is unclear what the future brings as European, national and regional elections are upcoming.
What are the emerging trends in employment law in your jurisdiction?
Aside from the modal shift to green mobility, noteworthy trends include:
- the digitalisation of some sectors (eg, banking);
- the expansion of the on-demand economy;
- the increase in working time flexibility; and
- the growing attention for inappropriate workplace conduct, including sexual harassment.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
Belgian employment law is largely uncodified, with the exception of the Health and Safety Code and the Social Penal Code. Therefore, most employment law is laid down in separate federal acts and executive royal decrees, the most important of which is the Act on Employment Agreements of 3 July 1978.
Further, while the government has competence for most employment law matters, some have been delegated to the regions (ie, Brussels, Flanders and Wallonia), including international employment (eg, work permits for foreign citizens) and job placement services. Specifically, social partners (ie, trade unions and employers’ organisations) have competence to set out binding rules in national and sectoral collective bargaining agreements. These agreements are usually declared universally applicable. Therefore, national collective bargaining agreements are an important part of Belgian employment law. Finally, collective bargaining agreements can be concluded at the undertaking level and certain rules can also be set out in internal company rules.
Who do these cover, including categories of worker?
Belgian employment law applies to employers and employees in the private sector. While some of this legislation applies to the public sector employees and contractors, the public sector generally has distinct rules. That said, Belgian employment law does not apply to independent contractors, with the exception of some general health and safety provisions.
Are there specific rules regarding employee/contractor classification?
The Act on Labour Relations of 27 December 2006 governs the misclassification of employees and contractors. This act provides for four criteria when assessing whether to classify an individual as an employee or contractor:
- the true will of the parties (to be inferred from both the written agreement and the actual situation);
- the contractor's freedom to organise their working time – specifically whether:
- they can freely choose their work assignments and working hours;
- they must provide a justification for illness;
- they can choose to account for holidays; and
- the employer has control over the individual’s use of time;
- the free organisation of the work – specifically:
- whether the individual can freely choose (and refuse) assignments;
- the nature of the agreement;
- reporting requirements;
- the imposition of rules of conduct or objectives;
- who pays the salary and who bears the costs; and
- the possibility of hierarchical control or subordination – specifically:
- can the employer impose penalties;
- is there an established means of control;
- the nature of reporting; and
- the nature of control.
There are also neutral criteria that do not indicate how an individual should be classified, including the title of the agreement and whether the individual has registered with a social security institution, the Crossroads Bank for Enterprises or value added tax (the way in which income is declared for tax purposes).
Finally, special criteria have been introduced for certain sectors (eg, the construction, transport and cleaning).
Must an employment contract be in writing?
There is no obligation to conclude a written employment contract; oral employment contracts can be valid. However, the following contracts must be in writing:
- student contracts;
- part-time contracts;
- temporary contracts or contracts for a specific project;
- home and telework contracts;
- temporary agency contracts; and
- replacement contracts.
Some specific clauses in the employment contract must also be in writing – for example, schooling and non-compete clauses.
Are any terms implied into employment contracts?
The most important implied term is that an employment contract will be concluded for an indefinite period unless specified otherwise.
Are mandatory arbitration/dispute resolution agreements enforceable?
Mandatory arbitration agreements or clauses are null and void. Workers can always bring a case before the labour courts.
How can employers make changes to existing employment agreements?
While employers can easily make changes in individual employment agreements, unilateral changes are not without risk. Small, logical or insignificant changes are allowed, but unilateral changes of essential elements in an employment contract can imply constructive dismissal. If this is the case, the employee has a right to dismissal compensation and they can file for a compensation for a manifestly unreasonable dismissal.
Is a distinction drawn between local and foreign workers?
Foreign workers cannot be discriminated against as they are protected by the Racism Act 1981 and the General Discrimination Act 2007. Foreign workers should be treated equally in comparison with local workers. Of course, in order to be able to work, foreign nationals outside the European Economic Area and Switzerland must obtain a stay and work permit.
What are the requirements relating to advertising positions?
There are no legal requirements relating to advertising positions.
Background checksWhat can employers do with regard to background checks and inquiries in relation to the following:
It is uncommon to check criminal records in Belgium, except when this is relevant for the job (eg, in the security sector).
Employers must be cautions when requesting medical history checks, as this may amount to discrimination on the basis of an individual’s health status. Employers can request medical history information only when such information is genuinely relevant for the job or function (eg, because of safety reasons).
General drug screenings is prohibited. Employers can request such tests be conducted by their occupational physician only in limited circumstances. Employers should maintain a clear drugs policy and include mandatory provisions in their internal work rules. Drug test can be used by a physician only to check whether the applicant is medically capable of performing the work. Physicians cannot communicate the test results to the employer.
As a rule, employers cannot enquire about an applicant’s credit and financial background. The General Anti-discrimination Act of 10 May 2007 prohibits any discrimination based on personal wealth. Belgian law does not allow recruiters to have access to applicants’ financial information.
As employing a foreign national who does not have a right or a (temporary) permit to work in Belgium would be illegal, employers can request information on applicants’ immigration status.
Employers can undertake social media and internet checks if they adhere to the general rules (eg, on discrimination and data protection) and the checks are genuinely relevant for the job.
Applicants who invoke their right to privacy when confronted with this information can often be refuted when they have put the information online themselves and either intended to make this public or should have known that the information would become public.
For example, an employer’s use of LinkedIn information should raise no issues in principle, as this social network is exclusively dedicated to business and professional relations and one of its aims is to connect individuals with employers. On the other hand, the use of information posted on Facebook can be more problematic as it may cover the private sphere.
The main rule is that background checks cannot be discriminatory and must be relevant for the job. Certain tests (eg, genetic and HIBV tests) are strictly forbidden by law.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The national minimum wage in the first quarter of 2019 was €1,593.81 gross per month. However, joint committees often set out higher minimum wages in sectoral collective bargaining agreements.
Are there restrictions on working hours?
In general, the maximum working day is nine hours and the average working week is 38 hours (this can be extended to 40 hours if the worker receives 12 additional holidays). Many exceptions to this rule apply.
Hours and overtime
What are the requirements for meal and rest breaks?
In principle, workers have a right to a 15-minute break every six hours. In practice, most workers get a 30-minute to one-hour lunch break. These breaks are not counted as working time.
How should overtime be calculated?
In principle, overtime is prohibited. However, there are several exceptions to this rule, including where:
- there is an extraordinary increase in workload;
- there is the threat of an accident or following an accident;
- urgent work on machinery or equipment must take place;
- urgent work is necessary due to unforeseen circumstances; or
- taking stock and preparing accounts is necessary.
With regard to overtime, in certain circumstances, an employer must:
- have a prior agreement with the relevant trade union delegation and the labour inspectorate (in the case of an extraordinary increase in workload);
- have a prior agreement with the relevant trade union delegation or, if this is not possible, inform this body and the labour inspectorate within a certain timeframe (in the case of urgent work necessary due to unforeseen circumstances); or
- offer voluntary overtime at the request of an employee, regardless of whether there is a specific reason. This is capped at 100 hours per year (or 360 hours per year in the case of a sectoral collective bargaining agreement which has been rendered obligatory by royal decree).
In most cases, where overtime is authorised, compensatory rest periods must be granted to ensure that the normal weekly working time is complied with over a reference period (usually three months).
In principle, for work performed in excess of the nine hours per day and 40 hours per week limits (or lower limits determined by a collective bargaining agreement involving an effective reduction of daily or weekly working time), employees are also entitled to overtime pay.
Overtime pay must be provided at least one-and-a-half times the employee’s regular rate of pay and twice their regular rate if the overtime is performed on a Sunday or public holiday.
What exemptions are there from overtime?
There are many structural exceptions to the working time requirements. In general, when working time is regulated as, for example, shift work, extra permitted hours are not counted as overtime.
Is there a minimum paid holiday entitlement?
In line with EU law, every worker has a right to 20 days of paid leave.
What are the rules applicable to final pay and deductions from wages?
Article 23 of the Act of 12 April 1956 on the protection of wages sets out all applicable deductions from wages:
- tax withholdings (ie, employees’ social security contributions and any contributions for the financing of complementary social security benefits can be deducted by virtue of individual agreements or collective bargaining agreements);
- fines under the applicable employment policy;
- indemnities due by the employee if they are found liable for damage as a result of fraud, a serious fault or a reoccurring minor fault (Article 18 of the Employment Contracts Act);
- advance payments by the employer;
- the amount of the warranty that the employer may ask for to secure the employee’s obligations; and
- surplus payments where an employee has worked too few hours under the agreement flexitime schedule at the end of the given notice period or following termination of their employment contract.
The total amount that can be withheld on the employee’s salary may – in principle – not exceed one-fifth of the employee’s salary after deduction of the advance tax payments, social security contributions and additional social security benefits. This limitation to one-fifth of the employee’s salary does not apply in cases of fraud or resignation by the employee.
What payroll and payment records must be maintained?
The most important documents that employers must maintain are:
- individual payslips (paper or electronic) – if an employee has a flexible working schedule, the employer must provide them with an overview of their current hours worked compared with the company’s daily and weekly schedule; and
- overviews of each individual’s yearly earnings.
These documents must be retained at the workplace for at least five years.
Discrimination, harassment & family leave
What is the position in relation to:Protected categories
Age is a protected category under the Discrimination Act of 10 May 2007.
The Racism Act of 30 July 1981 prohibits discrimination on the ground of nationality, race, colour, descent or national or ethnic origin.
Disability is a protected category under the Discrimination Act. According to European Court of Justice case law, the concept of ‘disability’ is broad and includes conditions caused by an illness that has been medically diagnosed if:
- the illness creates a physical, mental or psychological impairment which, alongside other barriers, hinders the person from fully and effectively maintaining a professional life on an equal basis with other workers; and
- the limitation is long term.
The Gender Act of 10 May 2007 prohibits discrimination based on sex, gender, pregnancy, childbirth or maternity, gender transitioning, gender identity and gender expression.
(e) Sexual orientation?
Sexual orientation is a protected category under the Discrimination Act.
Religion is a protected category under the Discrimination Act.
Current or future health situations are protected under the Discrimination Act. This means that medical history is not explicitly mentioned in the act. However, national Collective Bargaining Agreement 95 provides that workers cannot be treated as unequal based on their medical history. Such a distinction should therefore be avoided.
The Discrimination Act also protects marital status, birth, property, political opinion, trade union membership and activities, language, physical or genetic characteristic and social origin.
Family and medical leave
What is the position in relation to family and medical leave?
Employees can take paid time off for certain family events (eg, marriages, funerals, childbirth, adoption, holy communion and non-confessional youth celebrations). Further, provided that certain conditions with regard to seniority within the company and minimum employment standards are met, employees can suspend their employment contract in order to:
- care for their child until the age of eight;
- provide palliative care;
- care for a seriously ill family member;
- care for a disabled child until the age of 21; and
- care for a seriously ill child, provided that the child is part of the household.
Employees can suspend their employment contract completely or reduce their working hours by half or one-fifth for up to 51 months.
Finally, Belgium also grants paid pregnancy leave, maternity leave, paternity leave, adoption leave and leave for foster parents.
What is the position in relation to harassment?
Harassment (moral, psychological, sexual or physical) in the workplace is forbidden, and employers should implement plans to prevent such behaviour.
Victims of harassment can file an internal complaint with trusted members of the company or independent prevention advisers according to the company’s internal procedures. If these internal procedures are unsatisfactory, the victim can also file a complaint with the Social Inspection Department. Victims who file a complaint (internally or externally) are protected against dismissal. Finally, victims can file a complaint before the labour court and claim compensation (including from their employer if they failed to stop the harassment).
What is the position in relation to whistleblowing?
No specific Belgian legislation governs whistleblowing. However, the relevant case law is a good indicator of the admitted practices. Although the number of cases is limited in Belgium, there is a clear willingness on the part of companies to implement whistleblowing mechanisms in order to reach an appropriate balance between:
- the risk of late alerts and the affect that this can have on the work environment; and
- the need for transparency within companies.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
Collective Bargaining Agreements 68 and 81 regulate video surveillance of employees and the monitoring of professional electronic communications (eg, email). These agreements set out specific procedures for monitoring, which include an obligation to notify employees before any monitoring takes place. Further, the employees are protected by the right to respect for their private life, which allows for only proportional monitoring by employers.
To what extent can employers regulate off-duty conduct?
In principle, employers cannot regulate off-duty conduct unless an employee’s private behaviour or actions could have severe repercussions on their employment or the company image. For example, an employee insulting their employer on social media could lead to penalties.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
There are no specific rules for this. A general right to privacy applies.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Employment contracts typically contain a clause that states that the employer owns all IP rights. If such a clause is absent and there is no specific contract on the transfer of IP rights, the employee will retain authoring and patent rights. However, for computer programs, databases, drawings and models and branding, there is a legal assumption that any IP rights therein will be transferred to the employer.
What types of restrictive covenants are recognised and enforceable?
Non-compete clauses and clauses preventing the solicitation of customers and employees are enforceable.
Are there any special rules on non-competes for particular classes of employee?
As a consequence of the principle of good faith, employees are prohibited from competing with their employer while under an employment contract. As such, non-compete clauses may be inserted into employment contracts without any specific formality or condition.
For a non-compete clause to apply after an employment contract has been terminated, strict conditions must be met. For example, the clause must be in writing and will be valid only if the employee’s annual gross remuneration exceeds €69,639. Further restrictions apply where the employee’s remuneration does not exceed €69,639 – specifically:
- a collective bargaining agreement authorising the non-compete clause must be entered into at the company or industry level; and
- the employee’s annual gross remuneration must exceed €34,819 (these amounts are updated annually).
In general, non-compete clause are valid, provided that:
- they are limited to activities similar to those presently performed by the employee;
- they are limited to a well-defined geographical area within Belgium;
- the new employer is a competitor; and
- they do not exceed 12 months.
Except in the case of sales representatives, non-compete clauses must provide for an indemnity payment to the employee equal to at least 50% of the salary corresponding to the duration of the non-compete provision.
Non-compete clauses will be invalid if:
- the employer terminates the contract during the first six months of employment;
- after the first six months of employment, the employer terminates the employment contract with a notice period or an indemnity in lieu of notice; or
- the employee terminates the agreement based on a serious breach by the employer.
Provided that some specific requirements are met, various deviations from standard provisions in a non-compete clause can be included (ie, ‘special’ non-compete clauses). Such deviations may be used only for certain categories of enterprise and for white-collar employees (except sales representatives) with specific functions.
To fall within this category, an enterprise must either:
- carry out an international activity or have considerable economic, technical or financial interests in international markets; or
- have its own research department.
In such enterprises, special non-compete clauses may be applied only to those employees whose work allows them to directly or indirectly acquire a practice or knowledge peculiar to the enterprise, which, if used by another entity, could be detrimental.
If these conditions are met, it is possible to deviate from the standard non-competition clause, insofar as it restricts the geographical application of the non-compete to the national territory and is limited to 12 months.
Special non-compete clauses may also apply when an employment contract is terminated by the employer with a notice period or indemnity in lieu of notice after the first six months of employment have lapsed or if the contract is terminated during the first six months of employment.
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
In cases where an employee faces a disciplinary procedure, only the penalties provided for in the company’s employment policy can be taken. Further, the employment policy must set out options for an employee who wants to submit a grievance or make observations about, or object to, the penalties imposed on them.
The trade union delegation within the company has the right to be heard by the employer in relation to each actual or potential collective conflict. Moreover, every employee has the right to be assisted by a trade union delegate if they have an individual grievance.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Belgium is known as one of the most unionised countries in Europe. Approximately 55% of employees are unionised. Therefore, trade unions hold a powerful position in the Belgian economy and politics.
What are the rules on trade union recognition?
In order to be recognised, a trade union must:
- be an interprofessional organisation of employees;
- have been created for the whole country;
- be represented in the Central Economic Council and the National Labour Council; and
- be a professional or interprofessional organisation or a member of an interprofessional organisation that meets the first three conditions.
Three trade unions meet these conditions:
- the General Confederation of Liberal Trade Unions of Belgium;
- the General Belgian Trade Union Confederation; and
- the General Christian Trade Union Confederation.
What are the rules on collective bargaining?
Collective bargaining between social partners (ie, trade unions and employers’ organisations) plays a key role in shaping the rules of Belgian employment law. Collective bargaining agreements are entered into on a national or industry level by representatives from both organisations or on a company level between the employer and union representatives. Collective bargaining agreements at the national or sector level are often declared universally applicable to respectively the whole private sector or to all employers and employees of the sector. Further, 96% of private sector employees are covered by collective bargaining agreements. These agreements are legally binding and, unless otherwise stated, individual employment contracts cannot derogate from their provisions.
Are employers required to give notice of termination?
An employer can choose to either:
- terminate an employment contract with notice; or
- terminate an employment contract immediately and pay an indemnity in lieu of notice.
A combination of both, where service of a notice period is followed by an indemnity for the remainder of the notice period is also possible.
What are the rules that govern redundancy procedures?
Any indemnity in lieu of notice is calculated based on the employee’s annual salary at the time of termination, including statutory and contractual fringe benefits. If an employment contract is terminated with an indemnity in lieu of notice, no formalities are required; this is contrary to a termination by serving a notice period. Most of the procedural rules are in the Employment Contracts Act of 3 July 1978. The rules regarding reasons for dismissal are set out in Collective Bargaining Agreement 109.
Are there particular rules for collective redundancies/mass layoffs?
Where multiple redundancies qualify as a collective dismissal, the legislation on collective dismissals and the closure of undertakings (if necessary) apply.
A collective dismissal or the closure of an undertaking triggers several specific obligations for employers, including a requirement to:
- provide prior information and consultation obligations with employee representatives;
- several notice requirements to the authorities;
- indemnity payments; and
- redeployment initiatives.
What protections do employees have on dismissal?
There are procedural protections with regard to how employers must notify employees that they are being dismissed (content and means of communication). If an employee is dismissed for serious cause, the employer must follow a strict procedure.
If a labour court declares a dismissal manifestly unreasonable, this triggers additional compensation for the employee. Dismissals based on protected characteristic or because of a transfer of undertaking are prohibited.
Finally, certainly employees (eg, pregnant women, trade union representatives and candidates for the social elections and prevention advisers) are protected.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
Belgium has specialised tribunals and courts for labour conflicts – namely, the labour tribunals in the first instance and the labour courts of appeal at the appellate level.
The labour courts have jurisdiction over all individual labour disputes (eg, termination of employment contracts, salary, equal treatment and unfair competition). In principle, they have no jurisdiction over collective labour law conflicts. However, they can impose a sentence on disputes which have a collective nature and disputes over rights.
The labour courts are also competent to hear all claims relating to social security and social assistance matters.
What is the procedure and typical timescale?
In general, cases before a labour tribunal take approximately one year. Appeal procedures also take approximately one year. That said, this largely depends on complexity of the case.
What is the route for appeals?
Specific to the labour courts, labour tribunal decisions can always be appealed before the labour courts of appeal, regardless of the claim’s value.
The Supreme Court can annul appellate decisions, but only on the basis of points of law, not facts of the case. If a judgment is annulled, it will be remitted to another labour court of appeal.