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 an adverse 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 has no longer been 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 dispute 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 €71,523 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.

In the case of a dispute concerning the right to privacy, employees can also file a complaint to the Belgian Data Protection Authority. The Litigation Chamber of the Data Protection Authority is an administrative disputes body that can propose settlements, issue orders, impose penalties and administrative fines, and freeze or prohibit processing of data. The procedure can be initiated by one of the parties involved or by the Inspection Service after it has concluded an investigation. The decisions of the Litigation Chamber can be appealed to the Market Court (a specialised chamber of the Court of Appeal of Brussels), which deals with cases of this kind in summary proceedings.

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 2019.

i Urgent cause

Dismissal because of urgent reasons (without notice) is, in principle, only possible if the employer who invokes it is aware of the facts justifying the dismissal and carries it out within three working days of being made aware of the facts. However, if the employer invokes a persistent breach of the employment contract as a reason for terminating the contract of employment for urgent reasons, the employer himself or herself shall determine the time from which this breach shall immediately and definitively render any professional cooperation impossible. To assess the timeliness of the dismissal given for an urgent reason, the judge in a case of this kind must verify whether the accusation continued until three working days before the dismissal.

According to a judgment of 27 May 2019,4 by the Belgian supreme court, the Court of Cassation, the immediate dismissal of an employee because of continuous shortcomings can be lawful if the immediate dismissal is given within three working days of the termination of the shortcomings, even if, in the judge's opinion, the employer could have invoked the shortcomings as an urgent reason at an earlier stage. The Labour Court of Appeal had ruled incorrectly that in the event of continuous shortcomings the three-day period starts from the moment that one of the dismissed persons becomes aware of the facts.

In a judgment of 4 March 2019,5 the Labour Court of Liège ruled on a dismissal for urgent cause relating to an employee who had used a company car for private purposes, which was explicitly prohibited by company policy. Of particular interest is the fact that the employer delivered the proof of this misconduct by submitting data from the car's geolocation system. The dismissed employee argued that this proof could not be accepted by the Court as it violated his right to privacy.6 The Labour Court accepted the use of the geolocation system data as its use fulfilled the conditions of legality, transparency, finality and proportionality, in view of the references to the company's car policy. However, while certain aspects of the conduct of the employee were certainly incorrect, this behaviour was by no means so serious that it had to result in the immediate termination of the employment relationship. The dismissal because of urgent reasons was therefore not justified.

ii Reasons for dismissal

If an employee, in accordance with national Collective Bargaining Agreement (CBA) No. 109, requests the concrete reasons for his or her dismissal by registered letter, the employer must also provide them by registered letter. If the communication has been made by other means, the employee can claim payment of a fixed fine. In a judgment of 17 May 2019,7 the Labour Court of Appeal of Brussels clarified that this does not constitute an abuse of rights. The employer had claimed an abuse of rights, because the employer had indeed communicated the concrete reasons and the employee had actually taken note of them. The employer relied on a disputed point of view in legal doctrine that demanding such a fine when the employee has acknowledged becoming aware of the reasons for the dismissal by other means constitutes an abuse of law. The Labour Court ruling, however, refuted this. In fact, the purpose of CBA No. 109 is not to impose an overly formalistic framework. The CBA also allows the employer to communicate the concrete reasons for the dismissal on the employer's own initiative (e.g., during or shortly after the dismissal), in which case the formal requirements do not apply. The fact that, in this case, the employer did not communicate the concrete reasons of its own accord, and the employee did submit an application by registered letter, meant that there could be no deviation from the formal requirements imposed on the employer. In the circumstances, the communication had to be made by registered letter.

iii Discrimination based on age

The Labour Court of Leuven, in a judgment of 11 April 2019,8 declared a sectoral collective agreement non-applicable as it linked wage increases to the seniority of the employee, which the Court deemed to be contradictory in relation to the prohibition of discrimination based on age. In this case, in the eyes of the Labour Court, the collective bargaining agreement stretched the concept of seniority too far, as it interpreted as relevant professional experience any professional experience in any profession (even if completely different from the function discharged in the current company) and of any nature (including small part-time jobs), and it equated periods of incapacity (such as absences due to illness, accidents, unemployment and thematic leave) with actual professional experience.

iv Domestic work versus telework

Although the concepts of domestic work and telework are often confused with each other because in both situations the worker does not work from the office of the employer, there are important differences. In a judgment of 2 July 2019,9 the Brussels Labour Court of Appeal repeated the provisions of Title VI of the Law of 3 July 1978 on domestic work, making it clear that, as mentioned in Article 119.1, Section 2, these provisions do not apply to workers targeted by the collective agreement on telework concluded in the National Labour Council. Teleworkers cannot therefore claim the lump-sum allowance of 10 per cent of their salary as reimbursement of costs. In this case, after the closure of an office, the employee chose voluntarily to work from home, using the necessary information technology made available to her by the employer, instead of moving to another office of the company. After the ending of the employment contract, the employee demanded payment of the lump-sum allowance for domestic workers. The Labour Court of Appeal reiterated that telework may be carried out at the home of the teleworker or at any other place chosen by the teleworker. According to the Court, the essential difference between a domestic worker and a teleworker is that the latter makes use of the necessary modern means of telecommunication, which is not the case for the domestic worker. Moreover, the person concerned was under the authority of the employer, who was able to follow her activity precisely by means of the computer tools made available to her, while domestic workers are normally not under the direct supervision of an employer. The Court also referred to the voluntary nature of the teleworking arrangement for the employee and employer concerned. As the employee chose to work from home using the means made available to her by her employer (instead of moving to another office), the teleworking arrangement was voluntary. The Court therefore rejected the claim that she was a domestic worker.

v Wages

In a judgment of 20 May 2019,10 the Court of Cassation answered the question of whether benefits provided by a third party to an employee should be seen as part of the employee's wage, on which social security contributions must be paid. Pursuant to Article 2 of the Wage Protection Act of 12 April 1965, on the protection of the remuneration of workers, remuneration should be understood to mean the salary from the employer that the worker is entitled to be paid, because of the worker's commitment. The remuneration allocated to workers for work performed in performance of their employment contract therefore constitutes remuneration within the meaning of the Wage Protection Act, and it is this concept of remuneration that is taken into account for the calculation of social security contributions. Thus, the benefits that a third party pays to the employees of a company, for them to sell the third party's products at their place of work to the customers of their employer, constitute 'compensation for the work performed in execution of the existing employment contract between the employees and the company'.

On 16 September 2019,11 the Court of Cassation had to rule on the question of whether the employee has to pay back undue wages in gross or net form to the employer. Specifically, the question arises as to whether, in addition to the net salary, the employee must first reimburse the withheld tax on wages and, second, the employee's social security contributions. The Court stated that the withheld tax on wages should be reimbursed by the employee, but not the employee's social security contributions, as the relevant laws have explicitly foreseen a claim for employers against the National Social Security Office.

vi Bonuses and commission

The Labour Court of Appeal of Brussels ruled on 8 January 201912 that if the employer does not fix the targets to be reached for a bonus to be paid to its employees, it should pay the bonus anyway. According to the employment contract in this case, an employee was entitled to a bonus of 16 per cent of the target salary if objectives that were to be determined 'on an annual basis and by mutual agreement' were achieved. However, no targets were agreed for four years (2009–2012), so the employer paid a fixed bonus. In 2013 and 2014, there was again no agreement on the targets to be achieved, but at that time the employer refused the payment of any bonus because there was no agreement to pay a lump sum. After termination of the employment contract on account of reaching retirement age, the employee filed a claim for the overdue bonus payments. In respect of the bonuses for 2013 and 2014, for which no fixed amount had been agreed, the Labour Court stated that by not setting objectives the employer had prevented an essential condition for obtaining the variable salary from being met. In this context, Article 1178 of the Civil Code stipulates that a condition is deemed to have been fulfilled if a debtor who has committed himself or herself under that condition has in fact prevented it from being fulfilled. An error is required for this, but the failure to establish the objectives was, according to the Court, a contractual error on the part of the employer. As a result, the employee was deemed to have fulfilled the objectives.

In a similar judgment, the Labour Court of Appeal of Antwerp13 awarded a commission to an employee when the employer had not set any objectives. In this case, the employee in question had concluded an employment contract with a fixed gross monthly salary and a commission 'with a guaranteed minimum of €250 per month only during the first 12 months and a maximum of €1,500 per month'. In the years following the conclusion of the contract, the fixed gross monthly salary was increased several times. In 2016, an addendum was drawn up with the intention of abolishing the commission, but this addendum was never signed by the employee. In 2017, following a conflict over a unilateral change of position, the employee claimed arrears of salary on account of the fact that the commission objectives had not been determined. The employment contract was eventually terminated. According to the Labour Court, the employer was obliged to provide the employee with a commission scheme, because of Article 1134 of the Civil Code, which states that the contracting party who alone is able to bring about the fulfilment of the suspensive condition must, according to the rules of good faith, do everything in his or her power to make this possible. The employer made a mistake, as a result of which, in accordance with Article 1178 of the Civil Code, the conditions for entitlement to the maximum commission were deemed to have been met.

V OUTLOOK AND CONCLUSIONS

In what seems to be a general trend, the total amount of litigation cases before labour courts is decreasing slightly. This could be related to alternative forms of dispute resolution. This trend is likely to continue.

As 2020 is a year of social elections, the rather technical and complicated procedure required to organise social elections will certainly result in a lot of cases being brought before the labour courts, which can render decisions on disputes relating to the specific points of the election procedure. Based on the previous social elections, 150 to 200 cases can be expected.

Further, although the Litigation Chamber of the Data Protection Authority has commenced activities, until now it has barely touched upon privacy rights of employees under the EU General Data Protection Regulation. Nevertheless, privacy continues to be an important issue raised before the labour courts and it is certainly possible that the activities of the Data Protection Authority will result in greater significance being attached to employees' privacy rights.

Also, the issue of sexual harassment has been in the news, but until now cases relating to sexual harassment at work have been relatively rare. This low amount of case law could be attributable to the fact that there are internal intervention procedures within companies (led by a prevention adviser), which are usually followed before any external remedies are sought.

Finally, in 2019 in the CCOO case,14 the Court of Justice of the European Union (CJEU) delivered a remarkable judgment with regard to the obligation for employers to register working time. As Belgium does not recognise a general legal obligation to register working time, many employers do not have a registration system. It is plausible that, in future cases, labour courts could award overtime pay when the employer does not have a registration system, by referring to the case law of the CJEU.


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 2020 (subject to indexation each year).

4 Court of Cassation, 27 May 2019, S.18.0025.N/4.

5 Labour Court of Liège, 4 March 2019, AR 18/245/A.

6 Article 22 of the Constitution and Article 8 of the European Convention on Human Rights.

7 Labour Court of Appeal Brussels, 17 May 2019, AR 2018/AB/366.

8 Labour Court Leuven, 11 April 2019, AR 18/457/A.

9 Labour Court of Appeal Brussels, 2 July 2019, AR 2018/AB/278.

10 Court of Cassation, 20 May 2019, AR S. 17.0063.F.

11 Court of Cassation, 16 September 2019, AR S.17.0079.F – S.18.0042.F.

12 Labour Court of Appeal Brussels, 8 January 2019, AR 2017/AB/661.

13 Labour Court of Appeal Antwerp, 19 June 2019, AR 2018/AA/370.

14 Court of Justice of the European Union, 14 May 2019, C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) v. Deutsche Bank SAE.