The Labour and Employment Disputes Review: Belgium

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 and 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 and 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 is reflected 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.

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 and Leuven) take place in Dutch, those in the Walloon Region (Walloon Brabant, Hainaut and 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 be considered by 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; it is, however, rarely 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.

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.

Finally, the Administrative Commission for Labour Relations has the power to investigate (on the request of one or both of the parties to a contract) if a person in a contractual relationship should be qualified as employee or as an independent service provider. The Administrative Commission will do this by taking into account several criteria. The general criteria are: (1) the will of the parties; (2) the possibility to organise one's work; (3) the possibility to organise one's working time; (4) the possibility to exert supervision (subordination). The decisions of this Commission will only be valid for the specific cases and only for the social security administration. The parties can lodge an appeal against these decisions before the labour court.

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 2020.

i Discrimination

A pharmaceutical company was condemned by the Labour Court of Antwerp on 29 September 20204 for a triple discrimination of a female applicant who was both deaf and pregnant. The employer clearly expressed his concerns about the disability of the woman and offered a temporary and less interesting administrative job than the vacant position (so they could test her capabilities) even though the applicant had a master's degree in bioengineering. She also seemed to fulfil all the requirements of the job description (which the company altered later) and the company refused to look for other solutions. The company finally refused to hire the woman for the vacant position with the excuse that they would need someone who could start immediately, while the applicant could only start after her pregnancy. The company ended up hiring another person, but only after the deaf applicant gave birth to her child. The Court reasoned that the woman was discriminated against because (1) the company made her follow a different application procedure than other applicants because of her disability; (2) the refusal to hire her was based on her deafness; and (3) the refusal to hire her was based on her pregnancy. The company was ordered to pay damages equal to 18 months of wages, which is three times as much as the normal lump-sum compensation of six months in the case of discrimination. It is the first time that a victim of discrimination has been awarded triple compensation. The company has appealed this decision.

After a legal battle that lasted more than 10 years, the Labour Court of Appeal of Ghent pronounced itself in the Achbita case concerning an employee who was dismissed because she wanted to wear a headscarf at the workplace, which would be in violation of an unwritten neutrality policy of the company.5 The Labour Court of Appeal followed previous judgments of the Court of Justice of the European Union (CJEU)6 and the Court of Cassation7 in the same case and stated that the company had not discriminated against the woman based on her religion, as they based themselves on a neutrality policy. Unlike the CJEU, the Labour Court of Appeal did not believe that there was an indirect distinction between normal employees and employees whose religion recommends visual representations of their believe. However, the Labour Court of Appeal has delivered an extremely prudent judgment and it completed the justification test even though it did not believe there was a distinction.

ii Dismissal protection for employees who file a complaint about harassment

In a case of 20 January 2020, the Court of Cassation decided that employees who file a formal complaint regarding violence, harassment or sexually inappropriate behaviour are protected against negative actions (e.g., dismissal) that are a consequence of the submission of the complaint.8 However, the Court has clarified that the employee is not protected if the employer can prove that its decision was not a consequence of the submission of the complaint, even if it is related to the facts on which the complaint is based. This interpretation was confirmed in another case of the Court of Cassation on 15 June 2020.9

iii Telework

In its judgment of 5 October 2020, the Court of Cassation ruled that workers can fall under the scope of the rules for structural telework, even when there is no written agreement (as is mandatory for structural telework).10 Structural telework is the system of telework for employees who regularly and structurally work from home (e.g., one day a week). In addition, the Court stated that teleworkers are not automatically entitled to a lump-sum cost compensation of 10 per cent of the gross wage as is provided for the traditional category of homeworkers, because they are explicitly excluded from the legal provisions regarding this compensation.

iv Registration of working time

The Labour Court of Appeal of Brussels has made the first application of the case law of the CJEU regarding the registration of labour time (CCOO v. Deutsche Bank, No. C-55/18)11 in its decision of 22 May 2020.12 Although Belgium does not know an explicit legal provision that makes the registration of labour time mandatory, according to the Court such an obligation exists for employers as it would otherwise be impossible to objectively calculate the overtime performed by the employees. This would be in violation of the mandatory rest periods and maximum working hours as laid down in the EU Working Time Directive.

v Dismissal due to urgent cause and the coronavirus (covid-19)

In a case of the Labour Court of Antwerp (Hasselt division), the dismissal due to urgent cause (i.e., without notice period or indemnity in lieu of notice) was accepted owing to the violation of coronavirus preventive measures at the workplace of a company active in food processing.13 The case related to an employee who was a candidate for the health and safety committee of the company in the social elections of November 2020. Candidates for the social elections are protected against dismissal, but they can still be dismissed due to urgent cause, if a labour court accepts the reasons as valid. In this case, the employee had not only broken an expensive work tool because he was not able to control his frustrations, but he also refused to wear a face mask, which was made mandatory by the company to prevent the spread of the virus. He had protested against the obligation to wear a face mask during a collective information session and he had to be reminded of the obligation seven times in one single day because he continued to work without face mask. The Court accepted the urgent causes. In relation to the refusal to wear face masks, the Court highlighted the severity of the pandemic; the fact that everyone has to contribute in order to fight the virus; and it was especially not acceptable for an employee with a supervising function and for someone who is a candidate for the health and safety committee to openly refuse to wear a face mask, which puts his colleagues and himself in imminent danger.

vi Privacy and emails of departing employees

The Litigation Chamber of the Belgian Data Protection Authority (DPA) imposed a fine of €15,000 on a company with small and medium-sized enterprise (SME) status.14 In this case, the SME had abruptly fired its chief executive officer (CEO), who was also the son of the founder of the company. Owing to this abrupt termination, there was no decent transition to allow the company to follow-up on the projects of the ex-CEO. Therefore, they kept on using his email inbox and account. The ex-CEO requested that his email account and those of his wife, brother and father should be shut down as his family was no longer a part of the company. The DPA found out that even two and a half years after the departure of the ex-CEO, the accounts were still in use and there was no notification of the departure when emails were sent to these accounts. The DPA stated that an email account should be blocked at the moment of departure of an employee and the ex-employee needs to be informed of this; there should be an automatic message regarding the departure of the employee for people who try to reach the employee; after one month the email inbox and the automatic message should be deleted (this can be extended to three months if justified (e.g., by the important function of the employee); before the departure, the employee should have the opportunity to sort out his or her emails and save private emails; the company needs to recuperate emails that are important for the company before the departure and in the presence of the employee.

vii Dismissal indemnity in lieu of notice in the case of a time credit

In a decision of 22 June 2020, the Court of Cassation intervened in the discussion on the calculation basis of the indemnity in lieu of notice when the employee has taken a time credit.15 In this case, a female employee had reduced her working hours by half to take care of her child. The question is whether the indemnity in lieu of notice should be calculated on the basis of the (reduced) part-time wage (which she received during the time credit), or on the basis of the full wage that she received before the time credit. Based on the legal provisions, the calculation basis should be the reduced part-time wage. However, according to the Court, this could constitute a discrimination based on gender, because considerably more women than men take up a time credit in order to take care of children. This should be further investigated by the Labour Court of Appeal. The Court of Cassation refers to the case law of the CJEU regarding parental leave.16 However, the decision of the Court of Cassation can be seen as remarkable, as the Constitutional Court has already repeatedly judged that the calculation based on the reduced wage does not constitute a discrimination based on gender in the case of a time credit.17 The Constitutional Court has also stated that the calculation in the case of parental leave (which, according to the CJEU, should be based on the remuneration before the parental leave) should not be transposed to other systems of career interruption or a reduction of working time. 18

viii Gig economy

On 26 October, the Administrative Commission for Labour Relations decided that an Uber driver is not an independent service provider but an employee of Uber.19 The Commission found that apart from the will of the parties, the general criteria (e.g., no freedom to organise working time, no freedom to organise one's work, bond of subordination) refer to employee status. Also, almost all specific criteria for the transport sector directed towards an employment relationship. Uber has lodged an appeal against this decision.

ix Right to strike

The Court of Cassation ruled in a judgment of 7 January 2020 that a local leader of a trade union could be convicted by a criminal court because he had ordered the blockage of a busy road in the Port of Antwerp, which created a dangerous situation.20 Therefore, this conviction is a justified restriction of the right to take collective action. The fundamental right to strike does not allow members of a trade union to commit a crime.

In a similar case, the criminal court of Liège convicted 24 trade union members on 23 November 2020 for blocking an important highway during a collective action in 2015.21 This blockade caused an enormous traffic jam, which in turn held up an ambulance with a patient who needed an urgent medical operation. The patient did not survive. The trade union members were not held responsible for the death of the patient but they were convicted because their blockade created a dangerous situation.

x Constitutional matters

In March 2018, the legislature established a system whereby an employee who has a company car as part of his or her salary package (which he or she may also use privately) can exchange that car for a monetary mobility allowance (also called the 'cash for cars system'), which corresponds to the financial advantage of the car and which is taxed in the same favourable way. However, in a decision of 23 January 2020, the Constitutional Court annulled this legislation because the mobility allowance (cash) that employees who exchanged their company car received was very beneficially taxed in comparison to the normal gross remuneration. This way, employees who do not have a company car are discriminated against, as their remuneration is heavily taxed.22 In order to give the (relatively low number of) employers and employees who have made use of the mobility allowance time to find another solution, the Court maintained the effects of the annulled law until 31 December 2020. That said, employers and employees can still make use of the 'mobility budget' system that was introduced in 2019 and which has the support of the social partners.

Further, the Act of 18 July 2018 created a tax threshold of €6,340 per year, under which employees can have an additional income from side jobs in the gig economy (through digital platforms); from work for non-commercial associations; and from citizen-to-citizen work (small non-professional jobs for other citizens). For this additional income, there are no income taxes or social security contributions required. However, the Constitutional Court invalidated this system in its judgment of 23 April 2020, as it deemed it discriminatory compared with normal employees who cannot enjoy the favourable fiscal treatment. The Court upheld the consequences of the system until the end of 2020. The new government wants to introduced a temporary new system for work for non-commercial associations with the Act of 24 December 2020 regarding work for associations.

Finally, in a judgment of 14 May 2020, the Constitutional Court largely upheld the system of guaranteed services during a collective action.23 The Court ruled that in general this system, which was installed by the Act of 29 November 2017, does not impede the employees of the Belgian National Railways from their free choice to participate in a collective action and, therefore, does not violate the right to take collective action. The system merely lays down a procedure in which the employees need to communicate in advance their choice to strike or to work, so the railways can organise and provide a limited guaranteed service during the collective action. However, the Court did annul the possibility to impose a disciplinary sanction to an employee who did not notify his or her intention to work (and thus to not participate to the collective action) in advance, as this would be disproportionate.

Outlook and conclusions

Like all other sectors of the society, employment law has been mainly occupied with the coronavirus during 2020. However, the jurisprudence relating to the covid-19 pandemic has been fairly limited. It is possible that we might see more cases in 2021 as the Social Inspection services have strictly controlled the respect for corona measures in many companies and it is possible that the Labour Prosecutor wishes to take some of these cases to the courts.

Nonetheless, there have been important cases in 2020. The Court of Cassation has been very active but also the Constitutional Court has taken some decision that have annulled (mobility allowance and association work) and saved (guaranteed service for the railways) some of the important achievements of the previous federal government (under Charles Michel).

Possibly the most remarkable or most debated case was the judgement of the Court of Appeal of Brussels regarding the registration of working time. This is an issue which worries a lot of companies that do not currently have system of working time registration. It will be very interesting to see if this (rather strict) case law will be followed by other case law. It will also be worthwhile to look at the impact on the regulatory level, as the national social partners are discussing this topic. Until now, Belgium has not done anything to adapt its legislation to the CCOO judgment of the CJEU.

Further, as was expected, the litigation chamber of the Belgian DPA has taken an active role in settling disputes related to privacy and data protection. In a relatively short time, it has become a force to be reckoned with and its decisions have been debated by academics and lawyers. It is expected that even more employees will file complaints before the DPA in the future. However, it remains to be seen whether the litigation chamber has the capacity to process a large increase in claims.

Finally, the gig economy continues to be a very relevant topic. There are still pending appeals against the decisions of the Administrative Commission for Labour Relations in which Deliveroo riders (decision of 2018) and Uber drivers (decision of 2020) were qualified as employees. The appeal case for Deliveroo is expected to take place in 2021. In an international and European context, which is tending toward a better protection of workers in the gig economy, it will be very interesting to see which position the Belgian labour courts will take.

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 Labour Court of Antwerp 29 September 2020 (www.unia.be).

5 Labour Court of Appeal of Ghent, 20 October 2020, No. 2019/AG/55.

6 CJEU, 14 March 2017, No. C-157/15, ECLI:EU:C:2017:203, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding/G4S Secure Solutions NV.

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

8 Court of Cassation, 20 January 2020, No. S.19.0019.F.

9 Court of Cassation, 15 June 2020, No. S.19.0014.N.

10 Court of Cassation, 5 October 2020, No. S.29.008.N.

11 CJEU, 14 May 2018, No. C-55/18, ECLI:EU:C:2019:402, CCOO v. Deutsche Bank.

12 Labour Court of Appeal of Brussels, No. 2018/AB/424.

13 Labour Court of Antwerp (Hasselt division).

14 Data Protection Authority, decision No. 64/2020 of 29 September 2020.

15 Court of Cassation, 22 June 2020, No. S.19.0031.N.

16 CJEU, 27 February 2014, No. C-588/12, ECLI:EU:C:2014:99, Lyreco Belgium NV/Sophie Rogiers.

17 Constitutional Court, 13 March 2008, No. 51/2008; Constitutional Court 8 May 2008, No. 77/2008.

18 Constitutional Court, 10 November 2011, No. 165/2011.

19 Administrative Commission for Labour Relations, decision No. 187 of 26 October 2020.

20 Court of Cassation, 7 January 2020, No. P.19.0804.N.

21 Court of First Instance of Liège (Correctional Chamber), 23 November 2020, No. 2020/2429.

22 Constitutional Court, 23 January 2020, No. 11/2020.

23 Consitutional Court, 14 May 2020, No. 67/2020.

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