By laws of October 7, 2022 Belgium finally transposed the European directive on transparent and predictable working conditions (Directive (EU) 2019/1152), and partially transposed the European directive on work-life balance (Directive (EU) 2019/1158). Here is an overview of some of the most important changes in Belgian law.
Measures to promote work-life balance
New type of leave for carers:
- Employees may now take up to five days off a year in order to care for a seriously ill family member. These days are to be deducted from the employee’s entitlement to unpaid leave for compelling reasons (10 days per year). This leave is, in principle, unpaid (no cost for the employer). Any employee taking such leave is protected against termination of employment.
Better protection for employees dismissed for benefiting from or being about to benefit from thematic leave (such as parental leave):
- Employees now benefit from "upstream" protection, i.e., they are protected from the moment they submit their application until one month after the requested effective date. During this period, the employee can only be dismissed for a reason not related to the request for time credit or thematic leave.
- In case of dismissal outside the protection period, i.e., more than a month after the requested start or more than three months after the end of the time credit or thematic leave, the employee is protected against dismissal if the preparatory acts for the dismissal were taken by the employer during the protection period.
- The burden of proof regarding the reason for the dismissal falls on the employer. Also, at the employee's request, the employer must justify the dismissal in writing.
More difficult to refuse or postpone parental leave.
Obligation to inform employees about the “essential aspects of the employment relationship”
Employers must inform their employees about the “essential aspects of the employment relationship.” This obligation applies to new employees, and to existing employees who specifically ask for this information.
The “essential aspects” cover e.g., the identity of the parties, the employee’s position, the place of work, etc., as well as collective information such as the length of annual vacations, notice periods, and training rights.
This information may be provided in any written form. However, depending on the nature of the information (individual/collective), the employment contract and the Work Rules seem to be the most obvious vehicles.
»Many employers in Belgium are probably already in compliance with these obligations, but a review of current HR practice in light of the new law is recommended.
Minimum rights
The new Belgian laws establishes a range of minimum rights for workers:
- The principle of cumulative employment is recognized by the law and an employer may not prohibit employees from working for another employer (employees can have more than one job). There are some exceptions e.g., related to non-compete clauses and confidentiality issues.
- Employees have the right to transition to a form of employment with more predictable and secure working conditions (under Collective Bargaining Agreement n° 161). For instance, a worker employed with a variable work schedule is entitled to ask for a fixed schedule, and such a request can be filed after six months of employment. The employer may refuse the request, but the reason for the refusal must be given in writing.
- Restrictions on trial periods still existing for certain type of contracts such as student and interim contracts. For instance, it is now explicitly provided in the law that a three-day trial period cannot be included in successive student contracts for the same position.
- The guarantee of some working hours predictability in case of variable hours.
— For example, an employee may legitimately and without penalty refuse work if the work does not accord with the employee’s duly notified work schedule and/or does not fall within the daily period during which work may be performed in accordance with the Work Rules.
— In the event of late cancellation of scheduled work by the employer, the employer must pay for the performance of that work as if the work had been carried out.
- Protection against unfavorable treatment and dismissal for employees who file a complaint about the employer's failure to comply with the rights provided for by the new laws.
Emmanuel Plasschaert
Partner - Brussels
Evelien Jamaels
Counsel – Brussels
Gloria Saïdi
Associate – Brussels
