I INTRODUCTION

Labour and employment disputes in Belgium fall within the specialised jurisdiction of the labour courts. There are nine labour courts, each territorially competent in its own judicial district (Antwerp, Ghent, Leuven, Brussels Dutch, Brussels French, Walloon Brabant, Hainaut, Liège, Eupen).

Regarding the content of disputes, the labour courts are mainly competent for four types of dispute: (1) individual employment disputes, (2) social security issues, (3) disputes regarding the establishment and running of corporate bodies with employees’ representatives, and (4) disputes arising from administrative fines imposed by the authorities in the case of infringements of the Social Criminal Code.2

The president of a labour court can also assert jurisdiction in specific urgent matters, such as the authorisation to dismiss, for serious reasons, an employee representative from a works council or health and safety committee (the workplace prevention and protection committee), or for prohibitory injunctions in cases of discrimination or harassment.

An appeal can be lodged with the territorially competent labour court of appeal against the judgment of a labour court. There are five labour courts of appeal (Antwerp, Ghent, Brussels Dutch, Brussels French, Liège, Mons). The labour court of appeal will examine the case in its entirety (facts and legal arguments).

The final level of jurisdiction is the Supreme Court, which will only assess the lawfulness of the decision of the labour court of appeal, without re-examining the merits of the case.

As the purpose of employment legislation is to protect the employee, the labour courts tend to favour the employee more than the employer. This reflects particularly in the burden of proof of the elements advanced by the employer and in the interpretation of the terms of a contract or other documents in the favour of the employee.

II PROCEDURE

i Labour and civil courts

The basic procedure for resolving employment disputes is to go to the labour court.

The party who believes that his or her rights have not been respected can initiate a procedure before the labour court through a writ of summons served by a bailiff (the draft is generally prepared by a lawyer) or through a petition (less expensive) introduced to the court office and notified by the court office to the other party. The writ of summons or petition must mention the claim and the date and location of an introductory court hearing.

Following a short delay (from a minimum of eight days up to a maximum of a couple of weeks), the introductory court hearing will be set at a date appointed by the court office.

Simple cases will normally be decided upon at this introductory hearing or at a hearing fixed shortly thereafter. For most cases, a schedule will be agreed between the parties or set by the court, including the dates by which the written pleadings with each party’s arguments and pieces of evidence must be submitted. Documents sent after the specified date will not be considered by the court, unless this is agreed to by the other party.

After the exchange of written statements, oral pleadings take place before the labour court. Most of the time, the oral pleadings are fixed one year after the introductory court hearing, but the caseload of the court can justify a longer delay. In the majority of cases, the hearing itself takes from one to one and a half hours (if the case is not too complex).

Under the Judicial Code, the labour judge will direct the parties to make a compulsory attempt at conciliation before the pleadings, or else the court action will be nullified, but this is largely a formality and will not bring the parties to an agreement.

The labour courts are presided over by a professional judge, assisted by two lay judges, one of whom is an employer representative and the other a union representative or a representative of the independent contractors. There is also a labour prosecutor, who represents the public interest and intervenes specifically in social security matters or discrimination and harassment or violence cases.

Regarding language, proceedings conducted in the Flemish Region (Antwerp, Ghent, Leuven) take place in Dutch, the ones in the Walloon Region (Walloon Brabant, Hainaut, Liège) are conducted in French and the ones in the German-speaking municipalities (Eupen) are conducted in German. In the Brussels-Capital Region, the claimant may choose to initiate proceedings in French or Dutch, but the defendant can ask – under certain conditions – to have the proceedings transferred to the court of the other language.

The written judgment will normally be rendered one month after the pleadings. Nevertheless, because of the case load it can take more time. The court will first examine the compliance with formal requirements for proceedings (e.g., the claim being filed in due time) and, if the legal requirements are met, the merits of the case. If the court estimates that it has insufficient information, it can render an interim judgment asking the parties to give extra information or produce more documents.

There are two kinds of remedies against a judgment of the labour court: opposition or appeal. Opposition applies when a decision has been reached by default, meaning that the losing party failed to appear. The case can then be brought back to the same court and a new decision can be requested. If both parties were present at the court hearing (or considered to be present, as is the case if a procedural schedule has been implemented by the court at the introduction hearing), the only remedy is to lodge an appeal before the labour court of appeal.

The appeal must be lodged within one month of the notification of the decision by the winning party’s bailiff, except for social security cases in which the term to lodge an appeal starts running immediately as of the sending of the judgment by the court’s clerk. Appeals that are filed late will be dismissed by the labour court of appeal.

The procedure before the labour court of appeal is like the procedure at first instance. In fact, the case is heard over again and is left to the appreciation of a higher court.

A party can decide to appeal a decision of the labour court before the Supreme Court. Such a petition must be filed within three months of the notification of the appeal decision. However, the Supreme Court will not re-examine the merits of the case, but will only pronounce a decision on questions of law.

The civil court procedure is mutatis mutandis, as with the labour courts. However, there are two major differences: the procedure must be initiated by writ of summons, not through petition, and the civil court has no lay judges. In the context of employment litigation, civil courts are not often used.

ii Alternative disputes resolution

There are three types of alternative dispute resolution mode foreseen by the Belgian Judicial Code: conciliation, mediation and arbitration.

Conciliation is organised by the court. Either party can ask the court to start a conciliation procedure, whether before the court procedure has started or at any time during the court procedure or, at the latest, during the oral pleadings. The judge can also propose conciliation to the parties, rather than a trial, subject to the parties agreement. Conciliation is free of costs. However, it is little used.

In mediation, an impartial third party (the mediator) helps the parties to reach an agreement towards their dispute. The mediation can be voluntary (i.e., outside legal proceedings) or judicial (i.e., initiated by the court within the framework of existing legal proceedings, but only if the parties consent). The mediator must be agreed by the Ministry of Justice.

If the parties reach a settlement agreement, this will be binding on the parties but not enforceable without obtaining ratification by the court.

The documents and communications arising from the mediation are confidential and cannot be used in a judicial or similar procedure (i.e., administrative or arbitral) . In the event of a violation of this duty of confidentiality, the judge can award damages.

The advantages of mediation over a standard judicial proceeding is that it is faster and cheaper. Indeed, the costs are limited to the mediator’s fees and expense. However, this is a voluntary process, so both parties must be prepared to engage to find a solution.

Finally, any case of a patrimonial or non-patrimonial nature that can be concluded by a settlement agreement (and therefore is not linked to public order provisions) can be submitted to arbitration.

However, an arbitration agreement that was entered into prior to any dispute that falls within the competence of the labour court is automatically null and void. An arbitral clause in an employment contract is therefore invalid. There is an exception for employees earning at least €68.361 gross per year3 and who are in charge of the daily management of the company or discharge a similar function for a division of the company or a production unit; in such cases, an arbitral clause in the employment contract is valid.

An arbitral award is final and binding for the parties, without the possibility of appeal before a court unless the parties have agreed the possibility of appeal before the court of first instance. Even in such a case, the competence of the court of first instance is limited to verification of the correct observance of procedural rules.

Compulsory enforcement of the arbitral award can only take place with the authorisation of the court of first instance, which will only refuse consent for formal reasons limited by law.

Arbitration is rather expensive because of the fees of specialised arbitrators. In Belgium, not many employment disputes are presented to arbitrators.

iii Collective actions and labour disputes

Labour courts have no jurisdiction for collective actions as the legislature prefers collective disputes to be resolved by negotiation between the employer and the employees’ representatives in special bodies created for such negotiation.

At company level, and depending on the number of employees, there is a works council (minimum 100 employees) or a health and safety committee (minimum 50 employees) where employers’ and employees’ representatives can discuss and conclude collective bargaining agreements to avoid or resolve collective conflicts.

At sectoral level (for each kind of industry), there are joint committees where employers’ and employees’ representatives can also negotiate.

Despite being essentially excluded from intervening, the courts can intervene in certain associated matters. The labour courts can, for instance, intervene in conflicts related to the installation and functioning of the works council or the health and safety committee, disputes related to collective dismissals or closing down, and individual claims related to the benefits established by collective bargaining agreements. The courts of first instance can also intervene in cases of criminal infringement or of threat to the personal security during strikes or lock-outs.

The labour courts are also competent for all claims relating to social security issues involving employers (e.g., the payment of social security contributions), employees (e.g., unemployment benefits) or self-employed workers (e.g., disability benefits), as well as for all social assistance matters.

III TYPES OF EMPLOYMENT DISPUTE

The Belgian Judicial Code lists the employment disputes that fall within the competence of the labour courts. Among others, these are disputes related to employment contracts, individual disputes regarding the application of collective bargaining agreements, disputes between employees during work time, civil disputes arising from infringements of criminal employment legislation (without prejudice to the competence of the criminal jurisdictions), disputes related to transfers of undertakings, disputes related to discrimination (including equality between women and men, racism and xenophobia) and psychosocial risks (e.g., violence or harassment), and disputes related to medical examinations in the context of employment relationships.

Typical individual employment disputes arising from contracts concern the conditions of employment (such as salary, fringe benefits, working time with overtime and pay) and also privacy, and the termination of the employment contract (i.e., calculation of the notice period or indemnity in lieu of notice, constructive dismissal, judicial rescission, unfair dismissal and dismissal for serious reasons).

In the framework of employment disputes, it is unlikely that an employee will initiate a procedure before the courts of first instance (civil courts), because the labour courts have special competence for employment disputes (in comparison with the general competence of the courts of first instance) and also the labour courts tend to favour employees more than the courts of first instance do.

Therefore, only civil servants (who do not fall within the competence of the labour courts, but rather within the ambit of the Council of State) could initiate a procedure before a court of first instance to obtain damages because of alleged faults in relation to their employment relationship.

IV YEAR IN REVIEW

As the purpose of this section is to highlight interesting decisions from the past year, this is not an exhaustive review of the case law in 2017.

i Justified dismissal

On 26 December 2013, the legislature adopted a law unifying the status of blue-collar and white-collar workers regarding, among other things, the notice periods to be served in the event of dismissal.4 As a counterpart to the adoption of this law, representatives of employers and employees (the social partners) had to conclude a collective bargaining agreement (CBA) on the statement of grounds for dismissal, which was done with CBA No. 109 on justified dismissal.5

The two most important achievements of CBA No. 109 are, on the one hand, that a dismissed employee has the right to know the reasons for his or her dismissal and, on the second hand, that if the dismissal is considered as manifestly unreasonable, the employee is entitled to 3 to 17 weeks’ remuneration as indemnity, at the discretion of the labour judge. Furthermore, if the employer does not provide a justification for the dismissal within two months of the express demand of the employee, the employer has to pay an indemnity of two weeks’ remuneration.

In the past, Belgian employment law did not require the employer to give the reasons for the dismissal, but notice periods were higher. As a counterpart to reducing the notice periods, the employer now has to justify a dismissal. Case law is therefore currently developing, analysing what is reasonable or not.

In a judgment of 13 February 2017, the Labour Court of Brussels stated that the unreasonable character of the dismissal did not reside in the circumstances of the dismissal.6 Indeed, the judge had to assess whether the reasons given by the employer were linked to the ability or the behaviour of that employee or to the necessities of the functioning of the company, and whether the same decision would have been taken by a normal and reasonable employer. The reasons for the dismissal were the weak performance of the employee, her aggressive behaviour, her frequent absences (some of which were not justified by a medical certificate) and failure to respect company procedure. According to the Labour Court, being exceptionally sick for nine days in two months was not a reasonable cause for dismissal. Regarding the failure to respect company procedure, the employer could not produce the relevant documents to prove either their alleged contents or their alleged compulsory character. As of the date on which the reasons for dismissal were found to be not proved or manifestly unreasonable, the employee was entitled to an indemnity fixed at 17 weeks by the judge because of the circumstances of the case and without further explanation.

On 20 March 2017, the Labour Court of Liège (Dinant division) rendered a judgment in a dismissal linked to a cumulation of professional mistakes. A rest-home nurse was dismissed because of negative assessments, gross negligence, failure to respect procedure, moral harassment and refusal of a medical examination.7 The Labour Court considered the pieces of evidence produced by the employer insufficient to prove the alleged mistakes. The Court added that the employer qualified the conflict between the nurse and her manager as moral harassment, but did so without demonstrating an objective element; as no valid element was developed to support this assertion, the Labour Court granted the employee an indemnity of 17 weeks.

Finally, on 8 June 2017, the Labour Court of Appeal of Liège rendered an interesting decision regarding the burden of proof in relation to unreasonable dismissal.8 The Labour Court of Appeal distinguished between three situations: (1) when the employer has communicated the reasons for dismissal in due time, the party making allegations has to substantiate those allegations; (2) when the employer has not communicated the reasons for dismissal according to the legal formalities, the employer has to prove that the dismissal is not manifestly unreasonable; and (3) when the employer has not communicated the reasons for dismissal, but neither has the employee has asked for those reasons, the employee has to prove that the dismissal was manifestly unreasonable.

ii Judicial rescission and harassment

If a party to an employment contract considers that the counterparty breached the contract, the first party can ask the labour court to decide on the rescission of the contract, because of the wrongful action of the counterparty; damages can also be sought to repair the harm suffered.

The advantage is that, in cases of dismissal, the party who decides on the dismissal has to respect a notice period (or pay an indemnity in lieu of notice) to the other party. A dismissal for serious cause may circumvent that requirement, but the level of seriousness of the breach in cases of serious cause is higher than is customarily addressed by judicial rescission. Finally, a party could claim constructive dismissal and so claim the termination of the contract because of the behaviour of the counterparty. However, if the initial analysis is wrong, the first party will have to pay an indemnity to the counterparty.

In short, when there is any doubt about the breach of a contract by the counterparty, it is prudent to ask the judge to decide on the rescission of the contract, because of the behaviour of the other party.

The Labour Court of Appeal of Brussels has analysed the possibility of judicial rescission in a context of harassment.9 A shop employee pointed out a mistake in her salary advice, but, in response, she received a warning for several mistakes. She replied to her employer, but the situation became worse and she became ill. In his report, the health and safety officer specialising in psychosocial risks concluded there had been a serious managerial dysfunction and harassment. The Labour Court of Appeal noted that it was not possible to sustain the employment relationship and that responsibility for this lay with the employer. The Labour Court of Appeal declared the rescission of the employment contract through fault on the part of the employer and sentenced him to pay material damages corresponding to the remuneration for the notice that would have been served in a case of classic dismissal by the employer. The Court also granted moral damages to the employee.

iii Collective dismissal and absenteeism

A dismissal during a period of sickness is valid in Belgium but is always a sensitive issue, because there is a risk that the employee will claim to have been dismissed because of ill health. In Belgium, the Anti-Discrimination Act protects against discrimination on the basis of an employee’s past and current health record or on the basis of disability. The employer has therefore to prove that the employee was not dismissed because of these criteria.

Notwithstanding this protection, the Labour Court of Appeal of Mons decided on 10 January 2017 that absenteeism could be a selection criterion in a case of collective dismissal.10 The Labour Court of Appeal stated that when it is necessary to reduce the workforce in a restructuring, it is legitimate to select staff on the basis of the efficiency of each worker. Therefore, dismissal of a worker whose performance record is weaker because of repeated absences for sickness, even if these are duly justified by medical certificates, is permissible. The Labour Court of Appeal, therefore, approved the use of the Bradford Factor (the theory used in relation to absenteeism to assess the efficiency and performance of workers) in the event of restructuring.

In the context of the restructuring, the employees’ representatives had accepted a CBA establishing a social plan and the criteria for dismissals, and this in turn provided grounds for the Labour Court of Appeal to reject the discrimination claim. In cases of individual dismissal based on absenteeism, therefore, the employer has to remain watchful.

iv Discrimination based on religion

On 9 October 2017, the Belgian Court of Cassation (the Belgian Supreme Court, competent to assess questions of law only and not the merits of a case) rendered a new decision in the Achbitda case.11

The case concerns Mrs Achbitda, receptionist to a security company, who decided to wear a headscarf, for religious reasons. The employer considered this contrary to the company’s policy of religious neutrality and dismissed her.

At first instance, the Labour Court of Antwerp considered there to be no direct discrimination on religion or philosophical grounds because the law protects the individual’s intimate beliefs but not their external demonstration. The judgment was confirmed at appeal by the Labour Court of Appeal of Antwerp.

Mrs Achbitda lodged an appeal before the Court of Cassation and the latter asked the European Court of Justice (ECJ) for a ruling on the matter with prejudicial effect. The ECJ found that the prohibition on wearing a headscarf – arising from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace – did not constitute direct discrimination. However, such an internal rule may constitute indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons who adhere to a particular religion or belief being put at a particular disadvantage, unless the rule is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which is for the court concerned to ascertain.

In its decision of 9 October 2017, the Court of Cassation reversed the decision of the Labour Court of Appeal of Antwerp, on the basis that it had not examined sufficiently whether the dismissal of Mrs Achbitda was (indirectly) discriminatory. The case has, therefore, been referred to the Labour Court of Appeal of Ghent, which will reassess the merits of the case.

v Dismissal for serious cause and social media

The accountant of a non-profit organisation published on his Facebook timeline various links referring to the ‘quenelle’ (an anti-establishment gesture, alleged by some to be anti-Semitic) and the controversial artist Dieudonné. A meeting was therefore organised with the president and the vice president of the non-profit organisation and the accountant. He gave a written commitment to no longer publish material, whether verbally or written, through all his social media accounts or through other types of communications media, such as the internet, nor support another person publishing material, even humorously, that could upset public opinion.

One year later, the accountant ‘liked’ on his Facebook timeline several publications about people making the quenelle. He was, as a result, dismissed for serious cause, with immediate effect and without notice or indemnity in lieu of notice.

The dismissal for serious cause was considered invalid by the judge at first instance for formal reasons.

At appeal, the Labour Court of Appeal of Liège rejected the accountant’s formal argument and examined the merits of the case. The Labour Court of Appeal pointed out that the movements linked to the quenelle are frequently racist and discriminatory because they focus on Jewish people and foreigners. Therefore, the quenelle is regarded as having anti-Semitic connotations. The accountant, by liking websites referring to the quenelle on his Facebook timeline, indicated that he adhered to or at least was interested in the ideas or black humour of those websites dealing with ideas with racist connotations. Moreover, clicking the like button on Facebook meant that the accountant was interested in those publications and also that he valued them. Regarding the accountant’s argument that it was just a like, and not a publication on his own Facebook timeline, the Labour Court of Appeal pointed out that it was mentioned on his Facebook timeline that he liked these publications. The accountant invoked a second argument related to freedom of expression. The Labour Court of Appeal held that the right to freedom of speech did not grant the employee the right to tarnish the image of the non-profit organisation and its leaders. The Labour Court of Appeal, therefore, considered the dismissal for serious cause to be justified.12

This decision is interesting for two reasons. First, the Labour Court of Appeal considered that publication on a Facebook timeline is not private but public. Second, there was no distinction to be made between publication on a person’s own timeline and a like, because in both cases, the person indicates appreciation for the relevant publication.

The Council of State adopted a similar point of view in a decision of 28 November 2017 regarding the dismissal of a civil servant for racism and discrimination.13 The civil servant had posted on his Facebook timeline pictures of the Klu Klux Klan and Nazi military caps, and had spread ideas and talk encouraging discrimination, hate and violence.

One of his arguments was that his Facebook timeline belonged to his private life and was therefore protected. The Council of State pointed out that 39 employees and 14 former employees were among his ‘friends’ on Facebook. In these circumstances, the civil servant could not pretend afterwards that the information on his timeline was not intended to be spread within the company. His Facebook timeline, therefore, had a public character and his employer was authorised to dismiss him on the basis of the screenshots provided by a colleague who was a Facebook friend of the civil servant.

V OUTLOOK AND CONCLUSIONS

Historically, because of the extensive notice periods (or indemnity in lieu of notice) to be respected, there was no requirement in Belgian employment law to justify a dismissal. With the law on the unified status of blue-collar and white-collar workers, the trend is now for shorter notice periods but with proof that a dismissal is well founded. In light of this development, the idea of dismissal without justification is finished. Now, the employer must both justify and maintain evidence of the reasons for the dismissal.

This is particularly the case in relation to employees dismissed during a period of sickness, who could claim to have been dismissed because of their health status or a disability. Therefore, the employer has to prove the organisational reasons for the dismissal.

In comparison with past years, when cases concerning well-being at work (harassment, violence) began to be introduced, the trend is now to assess such cases from an anti-discrimination perspective. We anticipate, therefore, that the number of discrimination claims will increase. In light of this, as in the Achbitda case, the prudent employer will assess whether the measures taken in one situation will also apply in other situations, and whether anyone is treated less favourably by those measures on the basis of a protected criterion.

Finally, with the increased use of social media, employees must be careful about what they mention on the internet. Their conversations or publications can be easily circulated and therefore become public. While, at present, employees can be sanctioned for what they say on the internet, it is worth noting that the use of social media in Belgium is currently assessed on the basis of the right to privacy.

However, social media aside, other technology-related aspects of labour and employment law, such as the gig economy and the qualification of the employment relationship, have yet to reach the labour courts in Belgium. In contrast to the United States and the United Kingdom, where Uber and Deliveroo drivers have challenged the status of their independent contractor relationships, this has not been the case in Belgium, but it remains to be seen whether the contractors may yet rush into this gap.

1 Nicolas Simon is a partner at Van Olmen & Wynant.

2 The labour courts are also competent for consumer over-indebtedness cases, but this competence has only to be transferred from the courts of first instance to the labour courts to reduce the caseload of the first instance courts. As such, it is not a matter related to labour or employment law.

3 Amount applicable as from 1 January 2018 and subject to indexation each year.

4 Act of 26 December 2013 regarding the introduction of an unified status for blue-collar and white-collar workers regarding the notice period and the ‘deficiency day’ (first day not paid in cases of sickness of a blue-collar worker).

5 Collective bargainng agreement No. 109 from 12 February 2014 regarding justified dismissal.

6 Labour Court of Brussels, 13 February 2017, No. 15/10892/A.

7 Labour Court of Liège (Dinant division), 20 March 2017, No. 15/1317/A.

8 Labour Court of Appeal of Liège, 8 June 2017, No. 2016-AL-332.

9 Labour Court of Appeal of Brussels, 10 May 2017, J.T.T., 2017, p. 372, No. 2015/AB/253.

10 Labour Court of Appeal of Mons, 10 January 2017, J.L.M.B., 2017/36, p. 1716, No. 2015/AM/306.

11 Court of Cassation, 9 October 2017, No. S.12.0062.N.

12 Labour Court of Appeal of Liège, 24 March 2017, No. 2016-AL-94.

13 Council of State, 28 November 2017, No. 239,993.