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Belgium
Legal framework
Pursuant to Article 35 of the Belgian Employment Contracts Act, an employer may terminate an employment contract with immediate effect, without notice or payment in lieu of notice, in the event of gross misconduct.
Gross misconduct exists where the employee has committed a serious mistake that renders the continuation of the employment relationship immediately and definitively impossible. Whether this threshold has been met is assessed in light of the specific facts and circumstances of the case. The burden of proof lies with the employer invoking the gross misconduct.
In the first instance, it is for the employer to determine whether the employee's conduct justifies an immediate dismissal for gross misconduct. However, where the dismissal is challenged, the competent labour jurisdiction will ultimately decide whether the legal requirements for gross misconduct have been satisfied.
Is falling asleep at work gross misconduct?
Falling asleep can in several circumstances qualify as serious misconduct. If the employee challenges the dismissal before the labour court, the court will assess both the gravity of the mistake and the circumstances and context surrounding it.
The court may consider a range of factors, including prior warnings, the employee's intent to cause harm, the employee’s role and responsibilities, the repeated or persistent nature of the misconduct, the employee’s health condition, the employee's overall conduct throughout the employment relationship and the extent of the damage suffered by the employer. For example, sleeping at work may justify a dismissal for gross misconduct where the employee carries safety-critical responsibilities, such as providing security services, supervising children, or managing a department.
As discussed further below, lack of sleep may also increase the risk of errors with data protection implications, such as accidental disclosure of personal data in breach of the GDPR.
In a Belgian gross misconduct assessment, if such errors were to involve sensitive company information, including personal data, the court would likely regard this as an aggravating factor. The consequences of the employee’s conduct, the seriousness of the misconduct and the resulting damage to the employer may then justify a dismissal for gross misconduct.
What can employers do?
Employers should ensure that workplace rules and expectations are clearly set out, typically in the work regulations, in a policy or in a code of conduct. These rules may explicitly provide that sleeping at work is unacceptable, may constitute serious misconduct and may lead to disciplinary measures, including dismissal for gross misconduct.
In addition, employers have a responsibility to safeguard the health and safety of their employees. As part of their well-being policy and ongoing risk assessment processes, employers should address workplace fatigue and promote the importance of adequate sleep. This is particularly relevant for roles where excessive fatigue may pose increased safety, operational or health risks. Of course, after a sleepless night because of the worldcup final celebration will on itself not be part of any well-being policy.
Key takeaway
Watching the World Cup final until 3 a.m. may leave an employee struggling to stay awake at work. While falling asleep at work will not automatically constitute gross misconduct, the specific circumstances and overall context of the case may nevertheless justify an immediate dismissal for gross misconduct. Belgian courts will always assess the seriousness of the conduct in light of the specific facts and circumstances of the case. Employers are therefore well advised to set clear workplace rules and address fatigue-related risks as part of their health and safety policies and broader well-being framework.
Netherlands
A high threshold
Under Dutch employment law, an immediate dismissal requires the existence of an urgent cause. In other words, the circumstances must be so serious that the employer cannot reasonably be expected to continue the employment relationship. The consequences of immediate dismissal are significant: the employment contract ends immediately, and the employee will generally not be entitled to a statutory transition payment. An employee who is tired at work because they stayed up late watching the World Cup final will, in most cases, not meet this high threshold. While employers are entitled to expect employees to arrive at work fit for duty and capable of performing their tasks, a one-off lapse in judgment will rarely justify the most severe sanction available under employment law.
The circumstances matter
This does not mean that such behaviour is necessarily without consequences. Whether disciplinary action is appropriate will depend on the specific circumstances of the case.
Relevant factors may include:
- the employee’s role and responsibilities;
- any safety risks associated with the work;
- the severity of the consequences resulting from the employee’s fatigue;
- whether the employee has received prior warnings; and
- whether the incident is isolated or part of a recurring pattern.
For example, fatigue may pose greater risks for employees in safety-sensitive positions than for those performing primarily administrative work. Likewise, there is a significant difference between briefly dozing off during a meeting and causing a dangerous situation due to lack of alertness. In such cases, employers may also have a duty to intervene where an employee's fatigue creates risks for the employee, colleagues or third parties.
Less severe measures first
In practice, employers will often consider less severe measures before resorting to dismissal. Depending on the circumstances, this may involve a written warning together with clear agreements regarding attendance and performance expectations. Employers are generally expected to respond proportionately and to take all relevant circumstances into account before imposing disciplinary measures.
At the same time, employees should remain mindful of their own responsibilities. Although there is nothing inherently wrong with staying up late to watch a major sporting event, employees are still expected to perform their duties properly the following working day.
Conclusion
While falling asleep at your desk after a night of World Cup football may be embarrassing, a one-time incident will generally not qualify as gross misconduct or provide grounds for summary dismissal. The legal assessment may be different where fatigue leads to serious consequences, creates safety risks, or forms part of a recurring pattern of behaviour.
Ultimately, there is no one-size-fits-all answer. Under Dutch employment law, whether disciplinary action is justified will always depend on the specific facts and circumstances of the case. Employers should therefore avoid jumping to conclusions, while employees should remember that enjoying a late-night match does not relieve them of their obligation to perform their work properly the next day.
Luxembourg
Under Luxembourg law, the notion of gross misconduct (faute grave) is relevant within the context of dismissal with immediate effect on serious grounds (motifs graves).
Dismissal with immediate effect on serious grounds requires an act or a misconduct of a particularly serious nature on behalf of the employee. Article L. 124-10 of the Luxembourg Labour Code further defines the notion of gross misconduct as any act or misconduct that renders the continuation of the employment relationship immediately and permanently impossible. The Labour Code also specifies that when assessing the facts or misconduct arising from the employee’s professional conduct, the courts shall take into account the employee’s level of education and professional background, the social circumstances and all factors that may have affected the employee’s liability, as well as the consequences of the dismissal.
Luxembourg case-law offers countless examples of misconducts that have been analysed to determine whether they qualify or not as being gross misconduct (and therefore whether they justify dismissal with immediate effect):
- The fact of being late to work repeatedly may be sufficient to justify dismissal as the employee is contractually obliged to start work at the agreed time (there is no need to further analyse the consequences of such tardiness on the smooth running of the company). However, such dismissal would be a dismissal with notice and not with immediate effect.
- Incompetence or professional inadequacy may also constitute valid grounds for dismissal. However, in principle, they do not justify dismissal with immediate effect but rather dismissal with notice. Professional inadequacy may manifest itself in a deficiency in either the quality or the quantity of the work performed. It is also to be noted that a mere lack of motivation or a negative attitude on the part of the employee is not necessarily sufficient unless it results in professional misconduct or negligence. Whilst an employer may require its employees to be diligent in their duties, it cannot require them to be enthusiastic about their work.
For professional incompetence to be assessed and upheld by the labour court, it must be supported by specific facts observed over a certain period of time. Therefore, to demonstrate that this is not merely a matter of a few isolated instances of carelessness, but rather a genuine inability on the part of the employee to carry out the tasks entrusted to them, the employer must document the professional inadequacy with concrete multiple examples.
Based on the above, under Luxembourg law, falling asleep at your desk after watching the World Cup Final until 3 a.m. does not necessarily qualify as a gross misconduct justifying a dismissal with immediate effect. However, should it happen after similar previous misconducts, and despite prior warnings from the employer, then it could justify a dismissal with notice.
Data protection: a cross-cutting concern
Beyond the employment law implications discussed above, fatigue-related lapses in the workplace can also give rise to data protection concerns that are relevant across all three jurisdictions.
Employees operating with reduced alertness are more prone to human error, such as sending an email containing personal data to the wrong recipient, misaddressing correspondence, or sharing confidential documents with unintended third parties. Such incidents may constitute a personal data breach under the General Data Protection Regulation (GDPR), which applies uniformly across all EU Member States, including Belgium, the Netherlands and Luxembourg.
A personal data breach can trigger notification obligations towards the competent supervisory authority and, in certain cases, towards the affected individuals. It may also expose employers to additional compliance, operational and reputational risks, regardless of the jurisdiction in which they operate.
With regard to workplace conduct, data protection breaches resulting from fatigue-related errors may also be relevant to the assessment of the employee’s conduct. In Belgium, a court may regard a GDPR breach as an aggravating factor when determining whether gross misconduct is established. In the Netherlands, it may be a relevant circumstance in the proportionality assessment. In Luxembourg, it could serve as an additional documented element of professional inadequacy supporting the employer’s position. In each case, the data protection dimension adds a layer of potential exposure for both the employer and the employee that should not be overlooked.
