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 disputes: (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 for 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 and 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 a decision of a 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 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.

A 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 (for which a draft is generally prepared by a lawyer) or through a petition (which is 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 on a date set 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 for 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 will last an hour to an hour and a half (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 cases involving discrimination, harassment or violence.

Regarding language, proceedings conducted in the Flemish Region (Antwerp, Ghent, Leuven) take place in Dutch, those in the Walloon Region (Walloon Brabant, Hainaut, Liège) are conducted in French and those 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 where the other language is used.

The written judgment will normally be rendered one month after the pleadings, although it can take more time, depending on the size of the caseload. 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 provide extra information or produce more documents.

To remedy against a judgment of the labour court, a party can file an appeal. This must be lodged within one month of the notification of the decision by the winning party's bailiff, except for social security cases, for which the term to lodge an appeal starts running at the moment the court's clerk sends the judgment. 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 whole case is heard again and is left to the appreciation of a higher court.

When a labour court of appeal decision has been reached by default, that is to say the losing party failed to appear, this party can apply the remedy of opposition. The case can then be brought back to the same court and a new decision can be requested. Since 2017, opposition is no longer possible against first-instance judgments.

A party can decide to appeal a labour court of appeal decision before the Supreme Court. 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. After its judgment, the Supreme Court will send the case back to a different labour court of appeal to decide on the merits.

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 modes 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 charge; however, it is little used.

In mediation, an impartial third party (the mediator) helps the parties to reach an agreement regarding 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 are that it is both faster and cheaper; indeed, the only costs are the mediator's fees and expenses. 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 who earn at least €69,639 gross per year3 and 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. Few employment disputes in Belgium 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 this type of negotiation.

At company level, and depending on the number of employees, there will be a works council (minimum 100 employees) or a health and safety committee (minimum 50 employees) where representatives of both employer and employees 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 at which representatives of employers and employees can negotiate and conclude sectorial collective bargaining agreements.

Despite being essentially excluded from intervening, the courts can intervene in certain associated matters. For instance, the labour courts can intervene in conflicts relating to the installation and functioning of the works council or the health and safety committee, disputes relating to collective dismissals or the closure of a company, and individual claims relating to the benefits established by collective bargaining agreements. The courts of first instance can also intervene in cases of criminal infringement or of threats to personal security during strikes or lockouts.

In addition, the labour courts are 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 DISPUTES

The Belgian Judicial Code lists the employment disputes that fall within the competence of the labour courts. Among others, these are disputes relating 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 relating to transfers of undertakings, or to discrimination (including equality between women and men, racism and xenophobia) and psychosocial risks (e.g., violence or harassment), and disputes relating 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), privacy, or the termination of an 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 fall within the ambit of the Council of State rather than the competence of the labour courts) could initiate a procedure before a court of first instance to obtain damages because of alleged faults in 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 2018.

i Urgent cause

In a judgment of 12 January 2018, the Labour Court of Appeal of Brussels ruled that the intentional infliction of injury on a person in the workplace does not necessarily constitute an urgent reason to dismiss an employee (without notice or compensation).4 It is possible that the facts do not make the professional cooperation between the employer and the employee immediately and definitively impossible. In this case, the employee was a football player who, after being struck by an opponent's knee, gave the opponent a blow to his face in the ensuing turmoil. In the given heated circumstances, according to the Court, giving a blow to the opponent is a serious error that may lead to disciplinary sanctions, but it did not immediately and definitively make professional cooperation between the football club and the player impossible. The player then entered into a discussion with his coach and openly criticised his hierarchical superior in the presence of supporters. This was also an error by the player, according to the Court, but did not demonstrate that the authority and integrity of the coach was violated in an unacceptable way.

On 24 February 2018, the Labour Court of Appeal of Liège did not accept the urgent reasons concerning a domestic worker who, at the request of her employer, did not present herself to a doctor (appointed and paid for by the employer) for a medical examination.5 When the worker became unfit for work, she justified her absence by presenting several medical certificates that allowed her to leave the house. She was asked five times to present herself to the employer's control doctor, 150km from her place of residence. The employer sent a warning each time the employee did not attend. The employee justified her absence by means of various certificates from her attending doctor, who stated that her state of health did not allow her to move on the days of the summonings. Subsequently, the employee was dismissed for urgent reasons. It was established that the medical certificates did not determine whether the employee was allowed to move in view of a medical examination. Consequently, the employer could assume that the employee could indeed go to the control doctor. However, the long distance could justify the impossibility of the journey, which was also explicitly certified by the attending doctor. The employee did not have to prove any force majeure. According to the Court, the employer could therefore not correctly establish that the employee refused to submit to a medical examination, since the control doctor was not sent to her place of residence. In addition, the Court qualified the dismissal as manifestly unreasonable because, on the one hand, the urgent reason was not retained, and, on the other hand, the other professional errors invoked by the employer were not proven.

The Labour Court of Liège reiterated the principles of competition by employees in a judgment delivered on 14 May 2018, stating that it is permitted only to prepare to carry out a future competitive activity.6 An employee-salesman was dismissed with urgent cause. According to the employer, this was supported by Facebook conversations that the employee had in the workplace during his working hours with a customer of the shop and a colleague. The employee was said to have reported the shop's poor financial health and its imminent closure, among other things. The employer therefore accused the employee of having seriously damaged the interests of the company and its reputation. The employer also reported that he was informed that the employee had contacted direct suppliers to prepare a competitive professional project. The Labour Court considered that the statements included in private conversations with acquaintances cannot be qualified as defamatory. Moreover, no mention was made of any ill-effects these statements had on trading activity. With regard to unfair competition, the Court reiterated that if an employee who is still in service carries out an activity that competes with that of his employer, it would be considered unfair. However, simply preparing to carry out a future competitive activity is permitted (e.g., the creation of a company, the acquisition of a participation in a competing company, gathering certain information or conducting certain negotiations or transactions), without actually commencing the activity. In this particular case, it was established that the employee was in the initial phases of a shop opening project. According to the Court, it was therefore quite normal for the employee to obtain information, even from a supplier of which his employer is a customer. According to the Court, the fact that a shop opening project is being prepared (in this case another activity, even if certain products are identical, and in another place) cannot be regarded as an act of (unfair) competition. A fortiori, this cannot be grave misconduct.

ii Reasons for dismissal

In a judgment of 8 October 2018, the Labour Court of Liège sentenced an employer who had not duly substantiated a dismissal in a letter sent in response to an employee's demand for a cause of action relating to a civil fine under Article 7 of Collective Bargaining Agreement (CBA) No. 1097 (on the reasons for dismissals).8 As the dismissal form merely stated the reason for dismissal as 'Economic reasons. No longer enough revenue to pay wages', the employee asked to know the reasons within two months of the termination (in conformity with CBA No. 109). However, the letter with which the employer answered did not give the reasons, but stated that the employer was surprised at the question, since the employee knew the reasons for his dismissal. Reference was made to the fact that, at the time of termination, the manager 'explained very specifically the reasons which led her to do so'. She also pointed out that she tried to call the person concerned and even left a message asking the employee to call back, but to no avail. However, CBA No. 109 contains an obligation for an employer to send a registered letter within two months of termination. The employer must then communicate the specific (concrete) reasons that led to the dismissal within the same period. The sanction for non-compliance with this obligation is a fine equal to two weeks' salary. As the employer had refused to give any concrete reasons, and the reasons that had been given were vague, she had not complied with her obligations.

iii Discrimination based on disability

In February 2018, the Labour Court of Appeal of Brussels convicted an employer on the basis of discrimination on the ground of disability, because he had made no serious efforts to reintegrate an employee who had been absent from work for a long period because of cancer.9 After her initial recovery, the employee, who was a saleswoman in a store, had asked the employer to discuss the possibilities for a progressive reinstatement. The employer refused and terminated her contract, claiming a 'lack of suitable work for this worker'. The employer also referred to the recruitment of a new saleswoman, the expansion of the range of tasks, the webshop, the new products and cash register programmes for which additional training was required. The Labour Court of Appeal qualified the employee's situation as a disability, as her ongoing recovery would not allow her to cope with a full-time occupation for at least another year. The Court also stated that the dismissal was discriminatory because reasonable adjustments to her disability were possible and would not constitute an unreasonable burden for the employer. In doing so, the Court took the following elements into consideration:

  1. The employer has 14 retail outlets and did not demonstrate that adapted work was not possible in another location.
  2. Changes in the functioning of the company (webshop, cash register system, etc.) are common and may not constitute a threshold for re-entry.
  3. Additional training could have solved this problem.
  4. The profitability of the company in 2013 and 2014 showed that there was no economic need for dismissal and that the adjustments (in particular an adjusted work schedule and training) did not constitute an unreasonable burden.

In a case of 25 June 2018, the Labour Court of Antwerp qualified a dismissal for urgent cause of an employee suffering from an autism spectrum disorder as discriminatory. 10 The employer gave reasons for the dismissal on the grounds of refusal to work and insubordination, refusal to comply with lawful instructions and orders, and disturbance of the working environment. The employer also argued that he had not been sufficiently informed about the employee's medical condition and he considered that the employee had not demonstrated that his condition prevented him from monitoring his behaviour. However, the employer was aware of his disability from the moment he joined the company. The recruitment took place with the support of an organisation that offers job coaching to people with a disability. For three years, there were no serious problems in the employment relationship. However, problems started to arise in 2016 (mainly because the employee refused to carry out his tasks) that led to the dismissal for urgent reasons.

The facts invoked as grounds for urgent dismissal must be regarded as an error attributable to the employee. However, the special state of mind of the dismissed party may result in the fact that the actions attributed cannot be attributed to this party and therefore cannot be regarded as a shortcoming, which can also result in a reprehensible attitude or omission being regarded as insufficiently serious. As the severity of the employee's condition had been established by a 2010 judgment and by a psychiatric report in 2015, the Labour Court concluded in this case that the facts that may be considered as an error could not be attributed as a serious shortcoming, and that the employee's attitude was a direct consequence of his disability.

iv Discrimination based on state of health

In a judgment of 24 May 2018, the Labour Court of Appeal of Brussels dismissed a discrimination claim based on health status.11 A worker was dismissed because he was frequently absent and did not achieve the required productivity rate. He believed he had been dismissed because of his illness and that he was therefore discriminated against. Any form of discrimination based on the protected criteria, including the current or future state of health of the worker, is prohibited. The employee claimed that his absences and insufficient productivity were only a problem when the head of his department sent an email to his manager regarding his state of health. According to the Court, this email (and other emails attached to it) did not mention the diagnosis or the nature of the condition from which he suffered. The reproaches regarding the productivity level had been made long before and had no connection whatsoever with the disputed email. The employee was dismissed after numerous absences caused by illness and the consequent disorganisation of the service, as well as because his productivity did not meet the standards set by his superiors. It was therefore not established that there was a set of facts that could give rise to a presumption of discrimination based on any of the protected criteria, including the present or future state of health.

v Discrimination based on religion

The Labour Court of Brussels applied (for the first time in Belgium) the case law of the Court of Justice of the European Union (CJEU) (Achbita, C-157/15 and Bougnaoui, C-188/15, both of 14 March 2017)12 in a case concerning the dismissal of an employee for wearing a headscarf.13 Because of a policy of neutrality towards its clients, an employer had dismissed an employee for an 'urgent reason', because the woman had repeatedly confirmed her refusal to work without her headscarf. The Labour Court's investigation concerned both the discrimination, the serious reason and the manifestly unreasonable reason. Although there was no prohibition on headscarves in the individual employment contract or in the company's work rules, the Court did not conclude that the dismissal constituted discrimination on the basis of the employee's religion. With regard to direct discrimination, the Court, referring to the CJEU judgments of 14 March 2017, considered that the person concerned was not dismissed because of her religious convictions, but because of her refusal to comply with a dress code imposed by her employer on all her staff. There was no indirect discrimination either – here, the Court referred to the same CJEU case law and repeated the principles that the CJEU had explained in those decisions. The Labour Court concluded that a consistent and systematic prohibition – applicable to all employees – from wearing visible, ideological signs was an appropriate means of achieving the legitimate aim represented, i.e., the company's policy of neutrality.

There was therefore no entitlement to compensation under the anti-discrimination legislation. However, the Court also considered that the urgent cause of the dismissal was unjustified and emphasised that, in view of the controversies involved and the complexity of the matter, the person concerned could legitimately have erred regarding the extent of her rights. Although the urgent cause was rejected, the dismissal was not manifestly unreasonable, since it was based on the conduct of the person concerned. According to the Court, a reasonable employer could have acted in the same way in the same context.

vi Working time

The Labour Court of Appeal of Antwerp referred to the CJEU Tyco case in a judgment of 17 April 2018, to clarify that for mobile workers without a fixed workplace, the travel time between their home and the first place of work (first customer), and the travel time between the last place of work and their home, constituted working time.14 The case concerned workers in a mobile cleaning service team.

vii Bonus

The Labour Court of Appeal of Brussels ruled on 30 March 2018 on the demand of a dismissed employee for the pro rata payment of his bonus.15 The Court confirmed, in line with established case law, that a bonus is obtained at the moment the work is performed and is therefore, in principle, severable. Nevertheless, the principle of divisibility can be waived in a contract. In this case, as the employment contract included the condition that the employee had to be employed at the time of payment of the variable remuneration, the employer was not obliged to pay (a part of) the bonus.

V OUTLOOK AND CONCLUSIONS

Since the introduction of CBA No. 109, which gives dismissed employees the right to request a cause of action from the employer giving the reasons for dismissal, more and more dismissal claims by employees include arguments concerning a manifestly unreasonable dismissal. However, case law also illustrates that the Belgian labour courts are cautious about granting this qualification and it is difficult – although not impossible – to prove the existence of the manifestly unreasonable nature of a dismissal. Nevertheless, the importance of CBA No. 109 continues to grow.

As mentioned last year, there is a tendency for employees to rely on discrimination legislation to prevail in court. Discrimination claims relating to disability and health status are particularly important as they play a part in the health and safety obligations of employers. The reasonings behind decisions made by employers (e.g., a dismissal) are not always accepted by the courts. Nevertheless, it is clear that employers will have to be very careful if they wish to dismiss people with disabilities or health problems.

Furthermore, the 2017 CJEU case law referred to in Section IV.v with regard to employees being prohibited from wearing headscarves at work, is starting to have an effect on Belgian case law. The older national case law, which includes conditions for the provision of such a prohibition by employers, determined that even clear internal rules (in the work rules or employment policy) regarding the wearing of headscarves are set aside in favour of justification for prohibition through the principle of neutrality. It will therefore be difficult for employees who choose to wear headscarves against the will of their employer to find an effective protection against dismissal from the right not to be discriminated against on the basis of one's religion.

Although not much in evidence in 2018's case law, privacy has been an important theme. In particular, the entry into force of the General Data Protection Regulation (GDPR) has been a cause for concern among employers. The GDPR has laid down certain obligations for data processors (including employers) with regard to consent, transparency, justification for processing, data protection, inter alia. The first important cases arising from these obligations (although similar obligations already existed in national legislation) could come in 2019. Also, privacy cases regarding social media could gain importance, as social media platforms increase their impact on the professional work environment and on work relations.

Finally, Belgium has not been immune to the #MeToo movement, which has resulted in an increased awareness of inappropriate sexual behaviour in the workplace. The Belgian health and safety legislation provides for mostly internal procedures to cope with this issue (e.g., informal and formal interventions by specialised prevention advisers). However, the formal procedure brings with it protection for a victim of inappropriate sexual behaviour against dismissal related to his or her complaint, which could lead to dismissal claims being brought before the labour courts.


Footnotes

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 relating to labour or employment law.

3 Amount applicable as from 1 January 2019 (subject to indexation each year).

4 Labour Court of Appeal Brussels, 12 January 2018, AR 2016/AB/964.

5 Labour Court of Appeal Liège (division Neufchâteau), 24 February 2018, AR 2016/AU/73.

6 Labour Court Liège (Division Huy), 14 May 2018, AR 17/11/A.

7 Collective Bargaining Agreement No. 109 of 12 February 2014 regarding justified dismissal.

8 Labour Court Liège (Division Huy), 8 October 2018, AR 17/318/A.

9 Labour Court of Appeal Brussels, 20 February 2018, AR 2016/AB/959, www.unia.be.

10 Labour Court Antwerp (afd. Mechelen), 25 June 2018, AR 17/394/A.

11 Labour Court of Appeal Brussels, 24 May 2018, AR 2017/AB/332.

12 Labour Court Brussels, 28 May 2018, AR 16/7.231/A.

13 Court of Justice of the European Union [CJEU], 14 March 2017, Case C-157/15, Samira Achbita and Centrum voor Gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV; CJEU, 14 March 2017, Case C-188/15, Bougnaoui and ADDH v. Micropole SA.

14 Labour Court of Appeal Brussels, 30 March 2018, AR 2017/AA/141.

15 Labour Court of Appeal Brussels, 30 March 2018, AR 2016/AB/1166.