Chambers & Partners : Employment 2021 Belgium
The new Employment 2021 guide covers 52 jurisdictions. The guide provides the latest legal information on the legislative initiatives to cope with the COVID-19 crisis, terms of employment, non-compete and non-solicitation clauses, data privacy law, foreign workers, the role of unions and employee representative bodies, termination of employment, employment disputes and dispute resolution.
Trends and Developments
The Belgian government introduced several measures to help prevent the spread of COVID-19. One of these measures concerned so-called "corona telework". As a result, a legislative framework was created through which the necessity to work from home was regulated. As the pandemic-related measures were gradually scaled down, due to the decrease of the contamination rate, the necessity to work remotely was abolished as well. As expected, however, employees and employers are now faced with the demand to maintain the possibility to continue working from home.
Telework has been around for a long time already in Belgium, known as a form of work organisation in which, using information technology, work that was typically carried out at the company's site is now also carried out outside that site.
Two distinct forms of telework can be distinguished: structural telework and occasional telework. Since the lockdown of March 2020, occasional telework has been the norm among all employers whose employees could perform their tasks from home. Occasional telework was organised following the Act of 5 March 2017, as exceptional telework in the event of force majeure – ie, an unforeseen situation beyond their control. Inherently, this exceptional telework trend was always set up with the inevitable return to work in mind.
However, a long-term trend has been emerging, with structural telework as a new preferred form of organisation. Structural telework has a different legal background, mainly regulated by the collective labour agreement No 85. It concerns telework that is carried out on a constant, regular and permanent basis.
As companies are more and more choosing a permanent regime – with, for example, a working from home (WFH) schedule of four days a week – the application of specific rules in a creative manner is being seen in practice. Individuals have various preferences, as some employees may like to return to the office permanently, some may wish to work fully remotely, while others may prefer a formal hybrid role combining both working remotely and from the office.
From a Belgian law point of view, it is certainly possible to set up such a diverse system. It is, however, important to take a few preliminary remarks into account.
First, working from home is only possible for employees who can effectively exercise their tasks from home. Logically, this is not possible for certain functions (such as cleaning staff and on-site receptionists). Moreover, the legal framework for structural telework explicitly excludes mobile workers. This refers to all employees who exercise a function in which client visits or business travel is required (such as the sales force).
Second, it is important to define the place to which “home” should refer. If this is not explicitly limited to the Belgian home or residence of the employee, (wage and corporate) tax, employment and social security implications could be triggered. We recommend that each such cross-border case is looked at on a tailor-made basis.
Third, outside the exception for COVID-19, no employee can be forced to enter into any WFH scheme, nor can the employee impose it unto the employer. If any of such schemes are proposed by the employer, the employee cannot be forced to accept it. Mutual consent is paramount.
Taking the above into account, many annexes to employment agreements are drawn up, in which structural telework refers to working remotely with IT equipment from home (for example, every Monday and Tuesday). Telework policies which further detail the new situation are also emerging. The latter is especially useful considering the obligation of the employer to provide, instal and maintain the equipment needed for structural telework. If the employer does not do so, Belgian law imposes an obligation to pay an indemnity to cover such costs for the employees.
As a guideline, the mandatory indemnity to pay for connection and communication costs comprises a maximum EUR20 per month if the employee needs to make use of his or her own internet connection. In case the employee needs to make use of his or her own computer, an indemnity of a maximum EUR20 per month is due on top. Other more generic home office costs are not mandatory to pay, but the employer can navigate a few fixed amounts which will trigger a taxable benefit.
Taking the above into account, a written agreement between the employee and employer must be executed when the structural teleworking commences (at the latest). The agreement must contain several obligatory clauses, including the above-mentioned arrangement on the reimbursement by the employer of costs which related to the use of equipment, connections and communication. Regarding working time, in the absence of a different agreement, the teleworker should follow the same work schedule as in the office. The legislative framework on structural telework focuses also on the hours during which the employee may not be reached, which should be seen as a right to disconnect. As a result, agreement must be reached concerning the times or periods at which the employee must be available to be contacted, and by what means or the times at which the employee can call on technical support.
Apart from working time, the legal framework also specifically aims at the rules on welfare at work applying fully to teleworkers at home. In any case, the employer continues to bear final responsibility in relation to the health and safety of the teleworker. In order to fulfil this obligation, the internal prevention service should be enabled to have access to the teleworker's workplace. If the work is carried out in an inhabited area, the workplace is not simply freely accessible. The visit must be announced in advance and must be agreed to by the employee. Without prior consent, the fundamental right to the inviolability of the home would not be respected.
In so far as no specific agreements are made, employees will still be required to comply with the relevant regulations on the company's intranet. Specifically, it is common that the employer requires the employee to meet a number of criteria. The employee must "have the ability to carry out his or her tasks in the same way as in the company, both at a technical level and in terms of office design, health and safety". In practice, such requirement is only workable if the employee concerned has an office at home which is separated from the rest of the house. On top of that, following the current applicable rules, the employer must ensure measures to prevent a feeling of isolation.
With teleworking, it is inevitable that certain data leaves the premises of the employer. As digital and physical data is taken out of the normal work environment, vigilance is recommended and required by data protection rules. To this end, a good policy and the raising of employees' awareness is key. Employers are providing internal rules to ensure that employees know which documents they can take with them, how to deal with these documents and try to keep track of the (physical) location of certain data. With regard to digital data, focus lies on how this data can be accessed at home, with it becoming ubiquitous that email boxes and cloud services are easily operable from a laptop or mobile phone. Moreover, many employers set up security measures to prevent unrestricted access; this varies from obligatory use of complicated passwords to multi-factor authentication and limiting access to data that is strictly necessary.
Further measures are also being considered, such as VPN connections to the corporate network and banning free non-professional chat and cloud services (eg, Facebook Messenger or WhatsApp).
Employees’ mobility has evolved in the face of the COVID-19 pandemic, in such a way that it will be difficult to close the door on structural teleworking in the months and years to come. As the option for (part-time) structural teleworking is increasingly becoming the norm, many outstanding questions are still being navigated as the practice persists.
Employers, especially those whose business is part of an international group of companies, are applying various solutions in the form of policies and written agreements. This is especially important in order to harmonise “working from home” with the traditional legal notion of business hours. Moreover, employers want to ensure that employees working from home do not perform their activities elsewhere – for example, at a holiday destination or a location which is technically not in line with IT and GDPR requirements. Lastly, new solutions are being proposed as to how the training and education of young employees should be organised remotely and how the concept of teamwork is evolving in response to new, hybrid forms of working.
As telework can have wide-sweeping consequences for both employee and employer, it becomes highly advisable to prepare ahead and investigate the consequences and conditions for each specific telework scenario, taking into account the different jurisdictions that are involved and the applicable rules stipulating various obligations, even if the COVID-19-specific measures are slowly being scaling down.
Increase of Birth Leave
As of 1 January 2021, birth leave (formerly called "paternity leave") was increased from ten to 15 days. As of 1 January 2023, it will be increased to 20 days. The modalities of these days of absence remain identical. The days of birth leave can be taken by the father/co-mother within four months from the day of the birth. As before, the employee retains his or her salary during the first three days of absence. For the following days (henceforth also for the additional days of birth leave), he or she receives an allowance under the medical care and benefits insurance.
Neutrality Policy in Jeopardy in Belgium?
In a judgment of 3 May 2021, the French-speaking labour court of Brussels ruled that the neutrality policy of Brussels public transport operator – based on which, signs of religious, political or philosophical beliefs are not allowed at the workplace – qualified as "double discrimination". Not only is a ban on headscarves, which follows implicitly from the neutrality policy, direct discrimination on the grounds of religious belief, but it also results in gender discrimination, according to the judgment.
In contrast to the Brussels judgment, the prevailing case law of the ECJ rules that a company can still provide an internal neutrality policy which establishes that employees must dress neutrally and thus may not wear religious, philosophical or political symbols. The ECJ has again reaffirmed its position in a recent ruling of 15 July 2021. The court does attach some conditions to such neutral dress codes, including the employer's obligation to show that the neutrality policy meets a "real need". This actual need can consist of both a neutral stance towards customers and the avoidance of social conflict in the workplace. It remains to be seen how Belgian case law will further evolve after this verdict.
Filip SaelensPartner Attorney at Law
Filip Saelens, attorney at law, is a local partner of the Employment & Benefits practice group in Belgium. He has over 30 years’ all-round experience in collective and individual employment law, with a particular focus on reorganisations and transformations, executive compensation, international mobility and the employment aspects of, mostly international, M&A-deals.T: +32 2 773 23 29 E: [email protected]