van Cutsem Wittamer Marnef & Partners

1

GENERAL PRINCIPLES

Forums For Adjudicating Employment Disputes

The labour courts have exclusive jurisdiction in actions and claims related to employment disputes. The chambers of the labour courts (of appeal) consist of a professional judge and two (2) lay judges who represent employers and employees.


The Main Sources Of Employment Law

Belgium is a civil law jurisdiction. There is no general employment law code but different acts. The principle of social dialogue is very important and as a consequence, Collective Bargaining Agreements (CBAs), concluded at different levels, are a very important source of employment law.

The main sources, which are categorised following a clear hierarchy, are: the mandatory provisions of law; CBAs concluded at national level, sector level and company level; the written individual employment contract; the company work rules; the non-mandatory provisions of law; the verbal individual employment contract; and custom.


National Law And Employees Working For Foreign Companies

The parties can choose the law applicable to their contract. Even if the agreement does not provide for the application of Belgian law, the mandatory provision of Belgian employment law will apply anyway. This means in practice that all the essential elements of the employment relationship, such as working hours, remuneration, termination, wellbeing at work etc. will be governed by Belgian law.


National Law And Employees Of National Companies Working In Another Jurisdiction

The employment relationship is primarily governed by the usual place of work. The parties may also agree that their relationship is governed by Belgian labor law (if the other jurisdiction makes it possible to make Belgian law govern the contract). Specific rules can apply in case of temporary secondment outside Belgium.


Data privacy

Employers must inform their employees that they collect, use, conserve, communicate or process in any other way, information on the basis whereof the employees are identified or can be identified. The processing of these personal data can be justified by the employers’ legal obligations and/or by the execution of the terms of the employment contract and/or on grounds of legitimate interest. It is recommendable that companies elaborate a specific privacy policy for HR purposes.

2

HIRING THE EMPLOYEE

Legal Requirements As To The Form Of Agreement

Although it is common practice to conclude written employment contracts, there is no legal obligation. A verbal contract is also valid. However, some clauses or particular contracts must be in writing to be valid (see “mandatory requirements” below).

An employment contract can never derogate from mandatory legal provisions nor from most of the CBAs concluded at national, sector or company level.


Mandatory Requirements
  • Trial Period

    • Trial periods are not valid in employments contracts entered into after September 1st, 2014. However there are two (2) exceptions: trial periods for temporary agency work and contracts for students.

  • Hours Of Work

    • There are a lot of mandatory provisions, both at national and sector level. As a rule, an average weekly working time of 38 hours is applicable but there are several exceptions to that rule. The applicable regime must be included in the company’s work rules.

  • Special Rules For Part-time Work

    • The work schedule of a part-time worker must be detailed, in writing, in the individual employment contract.

    The average weekly working time must be at least one-third of the working time of a full-time worker who belong in the same category and is employed in the same company. Either a collective bargaining agreement or a royal decree may provide for exceptions to this principle.

    Under certain conditions, part-time workers will be given priority to obtain a vacant full-time or part-time position with their employer. However, these priority rules do not apply to certain workers.

    There shall be no form of discrimination between part-time and full-time workers, but some rights are proportional to working hours.

  • Earnings

    • There is a minimum wage applicable to all sectors. At sector level, there are minimum salary scales based on the workers’ experience and function.

  • Holidays/Rest Periods

    • Full-time workers are per calendar year entitled to minimum 20 days paid leave (25 days if they work six (6) days per week), provided that they worked during the entire previous calendar year. Part-time workers are entitled to a prorated number of days off. Besides, there are 10 fixed public holidays. Also, various compulsory rest periods must be observed in case of overtime.

  • Minimum/Maximum Age

    • The minimum age of employment is 15. Legal provisions determine the conditions of work for children of particular ages and young workers. There is no maximum age.

  • Illness/Disability

    • During periods of illness or disability, the employment contract is suspended.

    White collar workers hired for an indefinite period or for a fixed term of at least three (3) months, are entitled to the payment of their full salary during the first 30 days.

    Blue-collar workers are entitled to the payment of their full salary during the first seven (7) days and to a degressive percentage of their salary during the following 21 days. In the event of long-term illness, a reintegration process can be started to allow the salaried worker, to return to his/her position, or to another position, possibly under other conditions if required by his/her health situation and if feasible for the employer. A specific procedure must be followed and specific conditions must be met to terminate the employment relationship for medical force majeure, without notice period or any termination compensation.

  • Location Of Work/Mobility

    • There are health and safety requirements with regard to the place of work. In case of regular telework (full-time or part-time), a written agreement is required. Specific mandatory provisions apply to telework or homework.

    The work location is considered by the labour courts as an essential employment condition, which means it cannot be changed unilaterally by the employer. However, employment contracts can contain a mobility clause which gives the employer, within certain limits, more flexibility.

  • Pension Plans

    • Employers offer frequently extra-legal pension plans, especially to white-collar employees. However, there is no obligation unless decided otherwise on sector level. If an employer offers such a plan for a specific category of personnel, all employees belonging to that category must be affiliated.

  • Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)

    • Maternity leave includes six (6) weeks before the presumed date of birth (optional leave) and nine (9) weeks after the date of birth (compulsory leave). If the employee has not taken all of the optional leave, she can take the remaining days or weeks after the birth of her child, in addition to the nine (9) weeks of compulsory leave minus one (1) week that must be taken before the presumed date of birth. If the employee is subject to Belgian social security law, she will be entitled, during the leave period, to maternity benefits paid by the public health insurance.

    Birth leave (applicable to the child’s father or co-parent), includes 15 days that can be taken on a continuous way or not during the first four (4) months after the date of birth. For births after 1 January 2023, birth leave counts 20 days. The employee is entitled to the normal salary at charge of the employer during the first three (3) days and, for the next days, the employee will be entitled to a public allocation paid by the public health insurance.

    Parental leave. There are two (2) types of parental leave that can be combined and that can give rise to the payment of an allowance by the unemployment office:

    • Time credit to take care of a child younger than eight (8): maximum 51 months per employee, full-time or part-time, if certain conditions are met (seniority, feasibility for the company); and
    • Parental leave to take care of a child younger than 12: maximum four (4) months full-time per child (or a longer period part-time).

    Workers have protection against dismissal or other adverse employer decisions in the event of pregnancy and maternity leave, birth leave, parental leave.

  • Whistle-blower

    • The Belgian Whistle-blower Act, that implements the EU Whistle-blower Directive 2019/1937, imposes common minimum standards for the protection of persons (employees, self-employed individuals, shareholders, member of the administrative, management or supervisory body of a company, any person working under the supervision and direction of contractors, subcontractors and suppliers, etc.) reporting breaches of EU or national law, by imposing a mandatory internal reporting procedure (for all companies with 50 employees or more), and by and prohibiting and sanctioning any attempt at retaliation (such as dismissal, suspension, demotion, etc) from an employer following a report maid in good faith. In the financial sector only, this internal procedure is mandatory, regardless of the number of employees.

  • Employee Representatives

    • For all companies with 50 or more employees, the law stipulates that employee delegates or alternate on works councils (CE) and committees for prevention and protection at work (CPPT), as well as for candidates for employee delegate, enjoy a special protection against dismissal. This protection also applies to the members of the trade union delegation who carry out the tasks assigned to the committee.

    They can only be dismissed for serious reasons approved in advance by the labour court or for economic or technical reasons approved in advance by the relevant joint body. This legal matter is a matter of public policy.

  • Compulsory Terms

    • Some clauses and contracts must be in writing to be valid, for instance a non-compete clause, the work schedule of a part-time worker, a contract concluded for a definite period, a student contract, a telework contract etc.

    At company level, it is compulsory to have work rules.

    The parties to the employment contract are free to agree upon any other terms in addition to the compulsory provisions, provided that these terms are not less favourable to the employee than the minimum mandatory statutory rights.

  • Non-Compulsory Terms



Types Of Agreement

Employment contracts exist in several different forms: definite period of time or indefinite period of time, full-time or part-time. The compulsory terms apply regardless of the type of agreement.

The workers are given an employment status, which has its own regulations (namely manual or blue-collar worker, white-collar worker, sales representative, temporary agency worker, teleworker etc.).


Secrecy/Confidentiality

Employment contracts for employees having access to certain information often include a specific clause on secrecy and confidentiality. As part of the general contractual obligation to act in good faith, and also based on the Employment Contract Act, the obligation of secrecy and confidentiality is applicable to every employment relationship, even if such obligation is not expressly mentioned in the contract.


Ownership of Inventions/Other Intellectual Property (IP) Rights

The employer holds the property rights on inventions made in the course and within the scope of the employment contract. The normal remuneration is mostly considered as a fair compensation. The same principle governs intellectual rights on computer programs, databases and trademarks and designs. The employee holds the copyright on literary or artistic work and related rights, unless otherwise agreed.


Pre-Employment Considerations

Employers must respect the principle of equality of treatment of the candidates who must receive complete information about the function. Questions about a candidate’s private life are only permitted if they are relevant given the nature and the conditions of the function.


Hiring Non-Nationals

Employers are obliged to ensure that all employees are entitled to work in Belgium. Generally, citizens of the European Union, the European Economic Area and Switzerland do not need a residence permit (only an identity card or passport) or work permit. Other foreign employees need a combined residence and work permit that is delivered by the regional authorities. Conditions and formalities vary depending on the purpose of the stay in Belgium, the duration of the stay and the employee’s nationality. An employer will be subject to administrative or criminal proceedings if they employ a person who is not entitled to work in Belgium.


Hiring Specified Categories Of Individuals

There are restrictions on who can be employed to carry out certain dangerous activities and on the types of work for vulnerable groups, such as children or pregnant women.


Outsourcing And/Or Sub-Contracting/Temporary Agency Work

As a ‘general rule’, the lease of personnel is prohibited by the Belgian Act of 24 July 1987 on temporary work, agency work and the lease of personnel. There is a prohibited lease of personnel when an employee formally employed by a company actually works (and is therefore used by) another company and does so under the (partial) authority of this user company.

An established prohibited lease of personnel entails several risks for both the employer and the user company. There are several consequences for the contractual relationship with the employee. According to the Belgian Supreme Court, any unpaid invoices for a prohibited lease of personnel, issued by the employer, cannot be collected before a court as they stem from a contract which is null and void due to an illicit cause. Also, the social inspectorate can, on its own initiative or at the request of a third party such as the employee, initiate an audit that can lead to severe criminal or administrative sanctions.

However, the lease of personnel is allowed within the framework of –

  • the occasional temporary lease of personnel, insofar as a tripartite agreement is concluded by the employer, the user company, and the employee, (1) in case of an intra-group lease of personnel or, (2) after authorisation by the social inspectorate and unanimous decision of the trade union delegation, at the condition that the lease of personnel is not part of the normal activities of the employer and only permanent employees are leased to the user company; and
  • temporary agency work.

Temporary agency work and the development of such activities is heavily regulated. Each region demands that agencies obtain a prior authorisation before they can start their activities on the Belgian market. User companies may only call on temporary agency work in four (4) circumstances:

  • Temporary replacement of a permanent employee whose employment contract is suspended, who reduces his/her work performance or whose employment contract is terminated: or
  • Temporary increase in workload; or
  • Exceptional work; or
  • Inflow/insertion.

Specific time limits apply depending on the reason for the temporary agency work. Moreover, if the user company has a trade union delegation, in some cases, the user company’s trade union’s consent is required. Even more strict conditions apply in the construction sector.

Finally, an admissible subcontracting/delivery of services requires that (1) an actual service can be identified (the service cannot merely consist in leasing employees) and (2) the legal and formal requirements are met, including only a limited number of instructions that can be given by the customer to the employees of the service provider, provided they are listed in a detailed and precise way in the service agreement and take place within the framework of the service that is delivered.

A service provider is assumed to have a certain knowledge in a particular field. The subcontractor will provide his/her services and his/her expertise to a customer who lacks and is in demand of this specific expertise.

In the framework of subcontracting, only a limited transfer of authority over the employees to the customer is permitted. The core of the employer’s authority remains at all times with the employer and is not transferred in practice to the customer.

3

MAINTAINING THE EMPLOYEE RELATIONSHIP

Changes To The Contract

If both parties to the employment contract agree, they can change the terms of their contract at any time.

The employer may not unilaterally change in a substantial way the essential working conditions (generally: function, remuneration, working time, working hours, place of work) However, certain changes may be made unilaterally by the employer if they are necessary to modernise, rationalise or expand the company’s activities or to safeguard or create new jobs. In all cases, such changes must respect the balance between the employer’s economic interests and the employee’s personal interests.

The employee may regard such unilateral and substantial alteration by the employer as the expression of the wish to terminate the agreement. Consequently, the employee can claim the normal compensation in lieu of notice from the employer. To this end the employee must invoke the unilateral modification of an essential element as unlawful dismissal within a reasonable time for reflection after the alteration has been made. If the employee exceeds this time for reflection and continues to work, then he/she waives his/her right to invoke breach of contract, even if the further implementation of the employment contract takes place under continued protest.

The employee may also file a request before the labour court in order to obtain the dissolution of the employment contract.


Change In Ownership Of The Business

When there is a change in the ownership of a business or a part of a business which gives rise to a change of employer, all employees are automatically transferred to the new employer on the same terms and conditions. There is an obligation for both the former and the new employer to inform their employees. The transferor and the transferee are also both responsible for the existing debts at the day of the transfer and resulting from the employment contract.

Changes in shareholding ownership, without a change of employer, do not have any consequences for the employment contracts.


Social Security Contributions

Employers and employees are required to pay social security contributions (rates are determined by the law). In practice, the payment of the contributions is the employer’s responsibility. Such contributions finance the national social security which in turn pays for employee benefits (e.g. sick pay, pensions, unemployment allowances etc.).


Accidents At Work

Employers have a legal duty to consider the safety and welfare of their employees. Employers are also responsible for accidents caused by the acts of their employees where the employees were acting in the course of their employment. Breaches of the employer’s statutory duties may give rise to criminal and civil liability. It is compulsory for the employer to take out insurance to cover the risk of accidents at work.


Discipline And Grievance

Employers can impose a disciplinary sanction insofar this possibility is provided for and detailed in the work rules. The sanction must be notified to the employee within 24 hours of the knowledge of the breach. As a general rule, it is not compulsory for employers of the private sector to follow a specific procedure before dismissing an employee. However, sector regulations or the employer’s work rules can provide for a dismissal procedure to be followed (ex: the insurance compagnies have a specific procedure provided by the joint commission n°306, and the bank’s sector apply the procedure of the joint commission n°310). Besides, specific procedures must be followed in case of dismissal of trade union delegates and employee representatives (Law of 19 March 1991 introducing special redundancy arrangements for staff delegates to works councils and committees on safety,), depending on the nature of their mandate. The elaboration of a grievance procedure is not required, except for situations that fall into the scope of the legislation on the prevention of psychosocial risks at work including stress, violence, and moral and sexual harassment at work. Derogating rules apply to employers of the public sector.


Harassment/Discrimination/Equal pay

Every employer must have a policy on the prevention of psychosocial risks at work including stress, violence, and moral and sexual harassment at work. Employees who make a formal complaint for harassment or violence, and employees who are witnesses in such cases, benefit from protection against dismissal and against unilateral changes of their working conditions. The complaint can be filed internally, at the social inspectorate or before the labour court. Before the court, the victims of violence or harassment can claim damages.

Employees are also protected from discrimination on grounds of sex, age, sexual orientation, marital status, race, religion or belief, language, political opinion, disability, current or future state of health, part-time status, and fixed-term status. Discrimination may occur before the employment relationship commences (for example in advertising the job), during the employment (for example in failing to promote), on termination or even after the employment has ended. The discrimination may be direct (for example refusing to employ someone on the grounds of their sex), or indirect (for example by imposing a condition which is irrelevant to the job but is such that fewer people of a particular group can qualify). Victims of discrimination can file a complaint before the labour court and claim damages.

The principle of equal pay has been enshrined in the national collective bargaining agreement nr. 25. Employees who lodge a complaint on this basis benefit from protection against dismissal.


Compulsory Training Obligations

As from 1st January 2024, each Employee should benefit from training days each year (at least 5 days for for full-time employees). Trainings can be formal or informal.

Every employer with 20 employees or more must also register a training plan and send his plan to the employees once a year (before March 31th).

For now, employers with less than 10 employees are exempt from training and training plan obligations, unless otherwise agreed at sector level or company level.

Specific training obligations can be taken at sector level or at company level.


Offsetting Earnings

It is possible for employers to offset earnings against employee’s debts, but only in a very limited number of situations and upon strict respect of the legal conditions.


Payments For Maternity And Disability Leave

The employment contract is suspended during maternity and disability leave.

Except in the case of guaranteed remuneration paid by the employer during the first month of disability for white-collars and during the first seven (7) days for blue-collars, the employee receives allowances from the national public health insurance.)

If the employee is disable to work again as a result of the same cause, the employer does not have to pay the guaranteed remuneration again, if the relapse occurs within the first 14 calendar days after the first incapacity. However, the guaranteed remuneration is paid by the employer if the disability is different from the first one, or if the first period of incapacity did not result in full payment of the guaranteed remuneration.


Compulsory Insurance

The subscription of an industrial accidents insurance that covers accidents at work and on the way from home to work is mandatory. The premium is totally paid by the employer. The amount depends on the remuneration and the risks involved in the performed work.


Absence For Military Or Public Service Duties

Employees are entitled to take leave for military or public service duties.


Works Councils or Trade Unions

Social dialogue plays an important role in employment law, at company level but also at sector level and at national level.

Employees are of course free to join a union. Employers do not have the right to know the identity of these employees.

An employer with 50 employees or more must organise social elections for the establishment of a Committee for the Prevention and Protection at Work, that considers any matters related to wellbeing at work and health and safety.

An employer with 100 employees or more must also organise social elections for the establishment of a Works Council, that considers any matters related to the economic and employment situation of the company.

In some matters, these bodies must be informed. In other matters, they must be given the opportunity to advise and discuss a specific issue.

Members of the Works Council and the Committee, as well as non-elected candidates for the social elections benefit from extensive protection against dismissal. They can only be dismissed for serious cause or for economic reasons, and only upon prior authorisation by the labour court and/or the joint committee.

At sector level, the conditions are determined for the establishment of a Trade Union Delegation which has the role to assist individual employees. In the absence of a Committee, the members of the Trade Union Delegation take the role of the members of a Committee and benefit from the same protection against dismissal. In the absence of a Works Council, they take up the role of the members of the Works Council when specifically provided for by the law.

Generally, the members of a Trade Union Delegation benefit from a specific protection against dismissal that is determined at sector level and that is less strict than the protection of the members of the Works Council and the Committee.


Employees’ Right To Strike

The right to strike is indirectly recognised under Belgian law. Strike actions are authorised, provided they do not involve illicit actions or vandalism. Not only the trade unions have the right to call a strike. CBAs can provide for a conciliation procedure which must be followed before calling a strike.


Employees On Strike

Employees who participate in a strike are not entitled to the payment of their salary. If the strike is organised or recognised by the trade unions, the employees will receive a payment from their trade union.

Employees on strike do not benefit from a specific protection against dismissal. However, the general rules on manifestly unreasonable or abusive dismissal can apply.


Employers’ Responsibility For Actions Of Their Employees

Employers are civilly liable for the acts of their employees, except where the employee was acting outside the course of his employment. Where harm is caused to the employer or third parties, employees are only liable for their wilful misconduct, gross negligence, or habitual minor negligence.

4

FIRING THE EMPLOYEE

Procedures For Terminating the Agreement

Generally, employment contracts can be terminated without the involvement of a third party such as a labour court or the joint committee. Only in very specific cases, derogating rules apply.

Some forms of termination require the compliance with legal formalities. That depends on the type of termination and on the employee status.

There are many types of termination, and each has specific procedures and conditions. This includes for instance:

  • Resignation by the employee (with notice period or compensation in lieu of notice); or
  • Dismissal by the employer (with notice period or compensation in lieu of notice); or
  • By mutual consent (termination date and eventual compensation to be agreed upon); or
  • Medical force majeure. A specific procedure must therefore be started after nine (9) months of continuous disability and specific conditions must be met; or
  • Serious cause (gross misconduct). When serious cause is a fault that renders the continuation of the working relationship immediately and impossible (ex: theft, violence, etc), the Employer could termina the contact immediately (without any notice period or compensation in lieu of notice). Strict formalities must be observed.

The dismissal of employees has different formalities depending on the employee status (ex: for protected employees) and the type of notice period (ex: legally established, immediate termination with compensation in lieu of notice, or a combination of both, a counter notice period from the employee, suspension grounds f the notice period, etc.).


Instant Dismissal

If the employer decides to terminate the contract with immediate effect, with compensation in lieu of notice, no specific formalities apply.

For reasons of proof of the dismissal and of the dismissal date, the employer shall hand over a letter saying that the employment contract comes to an end with immediate effect, and they shall ask the employee to sign a copy for receipt. If the employee refuses to sign the copy, it shall be sent to them by registered mail.

This is a common way for an employer to terminate an employment contract. An employee can also choose this option but that never happens because of the financial consequences.

Because no notice is given, the party that ends the contract must pay an indemnity that is equal to the employee’s remuneration during the theoretical notice period (theoretical notice period, see hereafter: “termination on notice”). This indemnity in lieu of notice must be paid at once and not monthly as the remuneration is.

The remuneration to be considered for the calculation of the indemnity is not only the actual remuneration paid monthly. It also includes all advantages and benefits in kind acquired by virtue of the contract (private use of a car, contributions paid by the employer to a group insurance scheme, the double holiday pay, end of year premium, variable remuneration of the last 12 months etc.). In practice, one must first make a calculation of the annual gross salary. Based on that amount, the indemnity must be calculated and will be expressed as a certain number of months and weeks.

The indemnity has in principle a lump-sum character. It is deemed to cover all damages resulting from the termination of the employment relationship.

The employer or the employee can also can terminate the employment contract instantly and without the payment of an indemnity, if the other party is guilty of gross misconduct (serious cause).

Strict formalities must be observed. The contract must be terminated within three (3) working days after having been informed of the serious cause. Further, within three (3) working days after the termination, the party that terminates the contract must notify the other party in writing of the reason for dismissal. Such a letter must be detailed and must be served by registered mail, by hand or by a bailiff writ. If these formalities are not complied with, or if a labour court decides afterwards that there was no serious cause, an indemnity in lieu of notice must be paid.


Employee's Resignation

The agreement can be terminated by the employee’s resignation. The employee has to respect the applicable notice period, otherwise they must pay the indemnity in lieu of notice. Specific rules apply to contracts concluded for a definite period.


Termination On Notice

The parties can terminate the agreement for an indefinite period on notice (special rules apply however to contracts concluded for a definite period).

If the employee resigns, the notice periods to be respected range from one (1) week to 13 weeks depending on the employee’s seniority.

For determining the notice period applicable in the event the employer gives notice, two (2) distinct periods will be considered. The results of the two (2) calculations must be added up. For the seniority acquired until 31 December 2013, the old dismissal rules apply, with small alterations:

  • White-collar workers:
    • Gross annual salary < 32,254 EUR in 2013: three (3) months for every started period of five (5) years’ seniority.
    • Gross annual salary ≥ 32,254 EUR in 2013: one (1) month of notice per started year of seniority, with a minimum of three (3) months, or conventional agreement applicable on 31 December 2013.
  • Blue-collar workers: notice periods determined by CBA concluded at sector level or Royal Decree applicable on 31 December 2013, or as determined by more favourable conventional agreements applicable on that date.

For the seniority acquired as from 1 January 2014, new dismissal rules apply. The notice periods are fixed and depend only on the employee’s seniority:


    Length of service Notice period in the event of termination by the employer
    From 0 to less than three (3) months One (1) week
    From (3) to less than (4) months Three (3) weeks
    From (4) to less than (5) months Four (4) weeks
    From (5) to less than (6) months Five (5) weeks
    From (6) to less than (9) months Six (6) weeks
    From (9) to less than (12) monthse Seven (7) weeks
    From 12 to less than 15 months Eight (8) weeks
    From 12 to less than 15 months Nine (9) weeks
    From 18 to less than 21 months 10 weeks
    From 21 to less than 24 months 11 weeks
    From 2 years to less than 3 years 12 weeks
    From 3 years to less than 4 years 13 weeks
    From 4 years to less than 5 years 15 weeks
    As of 5 years + 3 weeks per started year of seniority    
    From 20 years to less than 21 years     + 2 weeks per started year of seniority
    As of 21 years + 1 week per started year of seniority  


Termination By Reason Of The Employee's Age

If notice is given by the employer and the employee reaches the age for legal retirement (effective termination of the contract at the earliest on the first day of the month following the month in which the employee reaches the age of 65), the maximum notice will be 26 weeks.

In Belgium, the legal age for retirement is currently 65 years. From February 1st 2025, it will be 66 years. From February 1st, 2030, it will be 67 years.


Automatic Termination In Cases Of Force Majeure

The employment agreement can be terminated for force majeure (‘act of god’) where unpredictable events (ex: long term disability or accident) make its performance definitively impossible or due to the long term of inactivity. The contract will not come automatically to an end, but each party can invoke the case of force majeure as reason for the immediate termination of the contract. No indemnity must be paid.

The most frequent case of force majeure is the impossibility in the long term to perform, for medical reasons. Other examples are rare.

To conclude that there is a case of force majeure, a specific procedure must therefore be started, and specific conditions must be met: (i) the employee must have been unable to work for a continuous period of at least 9 months (ii) the employee mut not be on a rehabilitation program.


Collective Dismissals

The regulations relating to collective redundancies apply when, over a period of 60 days, a minimum number of employees are dismissed for reasons not related to the individuals themselves. The number of employees depends on the total number of employees employed by the company.

Before taking the decision, the employer must inform and consult the works council (in the absence of a works council: the trade union delegation) of his intention to proceed with a collective dismissal. The employees’ representatives must be given the opportunity to make counterproposals, to which the employer must respond in a serious manner. The employer must also notify the sub-regional employment service of his intention.

The actual decision to proceed with a collective dismissal can only be taken after the information and consultation phase. The employer may not dismiss the employees who will be made collectively redundant before the expiration of a period of 30 days beginning on the date of disclosure of the decision to the director sub-regional employment service.

It is recommendable for the employer to have concluded a social plan with the trade unions before going ahead with the dismissals.

Very strict and derogating rules apply to the dismissal procedure itself. The company must also establish an employment cell to improve the dismissed employees’ opportunities to find another job.

Additional sector regulations may apply. In case of closure of business, both the rules on collective dismissal and closure apply.


Termination By Parties’ Agreement

The parties are entirely free to agree upon the termination of the employment contract on any grounds they choose, without any notice or indemnity. It is however possible to provide for the payment of an indemnity. This kind of termination does not require any formality, but it is preferable to sign an agreement to avoid litigation.


Directors Or Other Senior Officers

There are no special rules which relate to the termination of a director or other senior officers’ employment, but in the case of a statutory director, termination of employment does not automatically end the directorship, which can only be terminated in accordance with the provisions of corporate law.


Special Rules For Categories Of Employee

Special rules apply to specific categories of employees, such as sales representatives, temporary agency workers or students.

Certain employees benefit from protection against dismissal, such as candidates to the social elections (very specific and strict rules apply to them), members of the trade union delegation, pregnant women, breast-feeding-women, employees who benefit from parental leave or another kind of interruption, employees who claim equal treatment between men and women, employees who put a complaint for harassment or all type of discrimination and violence at work, employees intervening as witnesses for victims of harassment/violence/discrimination at work, employees whose jobs are threatened by the introduction of a new technology, employees who benefits from the time-credit system, employees who have the function of Data Protection Officer, whistle-blowers, employees who commented on the draft labour regulations, employees who works at night and use their “right to return” to get a day job, members or candidates of the work council or committee for prevention and protection at work, prevention advisers, employees responsible for the disposal of toxic waste, employees holding certain political mandates, the company doctor etc. It is possible to terminate the contract of protected employees, but only for a reason that is not related to the reason of the protection (this is not so for candidates to the social elections who can only be dismissed for serious cause or for economic reasons).

Each situation is different. It is therefore highly recommended that employers keep a detailed record of with this information for every employee to be consulted if a dismissal is being considered.


Specific Rules For Companies in Financial Difficulties

Companies in financial difficulties can benefit from derogating rules in case of collective dismissal and closure of business.

In case of an individual dismissal, companies in financial difficulties can be authorised to pay the severance indemnity on a monthly basis while, normally, it must be paid at once.

In order to avoid dismissals, these companies can use the system of temporary unemployment for economic reasons.

Finally, if an employer fails to pay the remuneration or severance indemnity, the employees can receive a capped amount from the Closure Fund.


Restricting Future Activities

It is possible to insert a non-compete clause in the contract of an employee where the entry into service with a competitor after termination of the agreement could harm the employer. Such a clause is subject to strict requirements. Specific conditions apply to sales representatives and employees working for an employer that has an international field of activities; has important economic, technical, or financial interests in international markets; and/or has its own research and development department.


Whistleblower Laws

There are specific rules in the banking sector. Employees who give specific information to the Financial Services and Market Authority benefit from a protection against dismissal.

There is also the Belgian Whistle-blower Act that implements the EU Whistle-blower Directive 2019/1937. This Act imposes common minimum standards for the protection of persons (employees, self-employed individuals, shareholders, member of the administrative, management or supervisory body of a company, any person working under the supervision and direction of contractors, subcontractors and suppliers, etc.) reporting several breaches of EU or national law.


Special Rules For Garden Leave

Garden leave does not exist under Belgian law. However, the parties can agree that, during the notice period, the employee will be exempted from the obligation to perform and will continue to receive his/her normal salary on a monthly basis, in which case the employee will be obliged to register with the public employment service in order to start looking for a new job. That is only possible with the employee’s consent. If he/she does not agree, there are only two (2) possibilities: either he/she serves notice and actually works, or the employer terminates the agreement with immediate effect and immediate payment of the total severance indemnity.


Severance Payments

Indemnity in lieu of notice see above chapter “instant dismissal”.

On top of the indemnity in lieu of notice, an employee might be entitled to one (1) or more of the following indemnities:

  • Employers have to provide a reason for dismissal if the employee requests it. If the employer does not provide a reason for dismissal, the employee is entitled to an indemnity equal to two (2) weeks’ salary. Also, employees can claim an indemnity from three (3) up to 17 weeks’ salary for manifestly unreasonable dismissal – i.e. dismissal without objective grounds related to the employee’s behaviour or skills, or to the company’s needs. Certain categories of workers are excluded from this right.
  • A dismissal can also be considered abusive. Then, the employee will have to prove the employer’s fault, the material or moral damages and the relation between the fault and the damages. The employees can claim an indemnity equal to six (6) months’ salary, unless another indemnity is planned in a mandatory collective bargaining agreement.
  • An employee can be entitled to a protection indemnity if the dismissal is based on the reason why he benefits from that specific protection. For most protections, a lump sum indemnity of three (3) or six (6) months’ salary is provided for. For candidates to the social elections, derogating rules apply.

Special Tax Provisions And Severance Payments

Severance payments are subject to a specific tax regime. The applicable tax rate is the average rate applied to the employee’s income over the previous year of employment. This means the severance payments are not cumulated with the other revenues of the year during which they are paid.

An indemnity in lieu of notice is subject to the regular social security contributions. Indemnities for unreasonable or abusive dismissal and protection indemnities (except those for the candidates to the social elections) are not.

Indemnities for moral damages are not subject to taxation but the tax administration only accepts this if a court decision clearly underlines that the indemnity covers moral damages.


Allowances Payable To Employees After Termination

Unless otherwise agreed, employers are generally not required to contribute to any allowances to employees after termination. One (1) exception is early retirement: then the employer must pay an additional allowance to the unemployment allocations.


Time Limits For Claims Following Termination

Contractual claims must be submitted within one (1) year of termination of the contract. A longer period of five (5) years applies to claims that can give rise to criminal proceedings, such as all claims related to remuneration issues.

5

GENERAL

Specific Matters Which Are Important Or Unique To This Jurisdiction

Use of languages. There are three (3) national languages in Belgium: Dutch, French, and German. Under Belgian law, special attention must be paid to the detailed legislation on which language is to be used in a professional capacity between employer and employee and in all official documents (such as an employment contract, notice letter etc.). The main rule is that the language to be used depends on the place where the company is located (Dutch, French, or German speaking region, with special rules for Brussels). There are different sanctions in case of infringement of these rules. On 16 April 2013, the European Court of Justice decided that, because of these rules, the free movement of workers within the EU is at risk in a cross-border employment situation. Consequently, in cross-border situations, documents can also be drafted in another language of the European Union, but for translation purposes only.

Social elections. In 2024, social elections will be held in Belgium, to set up and renew works councils (in companies with an average of 100 employees ore more) and committees for the prevention and protection committees (in companies with an average of at least 50 employees), which are consultative bodies within the company, made up equally of the head of the company a delegation of workers in the company.



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Tanguy Gillain
van Cutsem Wittamer Marnef & Partners
Belgium


Emilie Roba
van Cutsem Wittamer Marnef & Partners
Belgium


Disclaimer:

© 2024, van Cutsem Wittamer Marnef & Partners. All rights reserved by van Cutsem Wittamer Marnef & Partners as author and the owner of the copyright in this chapter. van Cutsem Wittamer Marnef & Partners has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: February 2024