Belgium: Spring Cleaning Tasks for Human Resources in 2020

Belgium has spent much of the last 12 months without a government following gridlock in coalition negotiations after the general election in May 2019. As such, there has not been any new legislation covering employment law. Here is a summary of topical actions that human resources (HR) professionals may want to take in 2020.

Consultative Bodies

Companies organizing social elections will be required to install new or renewed consultative bodies (i.e., committees for prevention and protection at work and/or work councils) in May 2020.

Companies installing consultative bodies for the first time may want to consider  the powers and tasks of the committee and the works council. Companies may also want to make clear arrangements about the rights and obligations of the elected employees’ representatives. To this end, it is important that employers pay sufficient attention to the drafting of the applicable internal regulations.

Electronic Company Bicycles

Electronic bicycles or e-bikes are a popular means of transportation and are frequently used for commuting. More and more employers are offering a (fast) electric company bicycle as a benefit to employees, whether or not as part of a so-called cafeteria plan, citing benefits to the climate and the health of employees. The downside of this trend is the frequency of accidents on the way to and from work that occur with an e-bike has risen sharply recently.

Employers that include an electric company bicycle in their lease plans should consider offering their employees the necessary safety equipment (helmet, lights, fluorescent jacket, etc.) as well as the necessary training and awareness on bicycle safety. This not only prevents accidents during employee commutes, but also helps keep insurance premiums down.

Dismissal During Illness

Belgian court decisions continue unaffected by the lack of effective government and recent case law that has applied increasing vigor to cases involving the dismissal of an employee during or shortly after a period of incapacity for work. In Belgium, dismissal during illness is possible, but recent case law has raised the risk of an employer being held liable for discrimination on grounds of state of health and/or for a manifestly unreasonable dismissal or abuse of dismissal rights (e.g. in the absence of evidence of organizational difficulties).

Employers may want to be cautious about dismissing employees during or immediately after incapacity for work and provide sufficient proof of the grounds of dismissal.

Inspectorate Strategic Action Plans

Several inspectorates have presented their strategic action plans for 2020. Social fraud (social dumping, undeclared work, etc.) is central. Certain sectors are targeted and for some regions and sectors (e.g. construction and catering), and the Welfare at Work Inspectorate highlighted certain themes as a campaign .

As a result, controls are likely to increase, mainly in cross-border postings of workers and in sectors susceptible to fraud. This may lead to a more coordinated cooperation and a smoother exchange of information between services. Employers may want to make sure that `they are compliant with Belgian labor legislation and that they are prepared for possible inspection by an inspectorate.

More information can be found here and here.

Time Recording Systems

According to European case law of May 2019, employers can, in certain cases, be required to introduce a time recording system. This is currently not compulsory in Belgium, except in specific cases, e.g. in the case of gliding hours.

Employers may want to keep a close watch on the evolution of the legislation in this area, so that working hours remain in line with the regulation. Flexible working arrangements with the necessary attention for a healthy work life balance remain an important point of attention. Employers may want to check whether their working hours regulations provide for this.

Flexible Remuneration Arrangements

Employers that wish to provide flexible remuneration for their employees may want to think through the relevant details for reference year 2020.

Employers may want to ensure that they have a sufficient budget and set clear targets. In addition, employers may want to consider the type of variable remuneration they wish to introduce (collective bargaining agreement no. 90, cash, bonus pension plan, profit sharing, shares, warrants, etc.) and make sure to implement the employee benefit correctly in the pay policy.

Data Privacy

Hacking of systems and personal data can have financial consequences for a company. Employers may want to make sure that their human resources (HR) data and practices comply with the General Data Protection Regulation (GDPR) and is cyber-attack proof.

Employers may want to consider continuing to pay the necessary attention to GDPR-compliant processing of HR data, particularly:

• ensuring that personal data is not kept in different locations andsystems,
• minimizing personal data to what is strictly necessary,
• ensuring that the employer knows where personal data of staff is kept and for which HR purposes,
• eemembering to answer employees’ questions about accessing their personnel files in a timely and correct manner, and
• reviewing which information to record in a personnel file or in other documents.
• raising awareness among HR managers and employees concerned to avoid explicit wording (subjective assessments, discriminatory wording, etc.) and avoiding using “free” fields.

European Union Membership

It is likely that there will be an agreement (this means there will not be something similar to a no-deal Brexit). In that case, a transitional period will start on February 1, 2020, during which certain rights (on residence, social security, and employment law) will remain unchanged for the time being (until December 31, 2020).

The United Kingdom formally left the European Union (EU) on January 31, 2020, but continues in a “transition period” under which it continues to follow EU rules until December 31, 2020. Thus, employers may want to ensure that all formalities for UK nationals posted to Belgium and all Belgian employees posted to the UK are correctly completed before December 31, 2020, after which it may become considerably more difficult. Employers may also want to ensure that all formalities relating to residence on the territory have been completed by that date.

Member states have until July 30, 2020, to transpose the new Posting of Workers Directive (No. 2018/957) into national law. The maximum duration of a posting will be limited to 12 months (and is renewable once for 6 months) for the application of employment law. Furthermore, the so-called “hard core provisions” are substantially extended. The impact for Belgium seems rather limited since the current Belgian legislation had already declared all criminally sanctioned provisions applicable to posted employees. However, it remains to be seen whether the new legislation will come in time and will still provide for additional obligations.

Employers may want to keep a close watch on the legislation in this area and ensure that the correct employment legislation is applied both to employees posted to Belgium from abroad and to employees posted from Belgium to other European Union member states.

Written by Isabel Plets and Alexander Vandenbergen of Lydian and Roger James of Ogletree Deakins.

© Lydian and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.