LABOUR & EMPLOYMENT Belgium - Consulting editor Morgan, Lewis & Bockius LLP - Van Olmen & Wynant
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LABOUR &
EMPLOYMENT
Belgium
Consulting editor
Morgan, Lewis & Bockius LLPLexology GTDT - Labour & Employment Labour & Employment Consulting editors Matthew Howse, K Lesli Ligorner, Walter Ahrens, Michael D. Schlemmer, Sabine Smith-Vidal Morgan, Lewis & Bockius LLP Quick reference guide enabling side-by-side comparison of local insights, including legislation, protected employee categories and enforcement agencies; worker representation; checks on applicants; terms of employment; rules on foreign workers; post-employment restrictive covenants; liability for acts of employees; taxation of employees; employee-created IP; data protection; business transfers; termination of employment; dispute resolution; and recent trends. Generated 20 April 2022 The information contained in this report is indicative only. Law Business Research is not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this report and in no event shall be liable for any damages resulting from reliance on or use of this information. © Copyright 2006 - 2022 Law Business Research © Copyright 2006 - 2021 Law Business Research www.lexology.com/gtdt 1/27
Lexology GTDT - Labour & Employment Table of contents LEGISLATION AND AGENCIES Primary and secondary legislation Protected employee categories Enforcement agencies WORKER REPRESENTATION Legal basis Powers of representatives BACKGROUND INFORMATION ON APPLICANTS Background checks Medical examinations Drug and alcohol testing HIRING OF EMPLOYEES Preference and discrimination Probationary period Classification as contractor or employee Temporary agency staffing FOREIGN WORKERS Visas Spouses General rules Resident labour market test TERMS OF EMPLOYMENT Working hours Overtime pay Vacation and holidays Sick leave and sick pay Leave of absence Mandatory employee benefits Part-time and fixed-term employees Public disclosures © Copyright 2006 - 2021 Law Business Research www.lexology.com/gtdt 2/27
Lexology GTDT - Labour & Employment POST-EMPLOYMENT RESTRICTIVE COVENANTS Validity and enforceability Post-employment payments LIABILITY FOR ACTS OF EMPLOYEES Extent of liability TAXATION OF EMPLOYEES Applicable taxes EMPLOYEE-CREATED IP Ownership rights Trade secrets and confidential information DATA PROTECTION Rules and obligations BUSINESS TRANSFERS Employee protections TERMINATION OF EMPLOYMENT Grounds for termination Notice Severance pay Procedure Employee protections Mass terminations and collective dismissals Class and collective actions Mandatory retirement age DISPUTE RESOLUTION Arbitration Employee waiver of rights Limitation period UPDATE AND TRENDS Key developments of the past year © Copyright 2006 - 2021 Law Business Research www.lexology.com/gtdt 3/27
Lexology GTDT - Labour & Employment
Contributors
Belgium
Chris Van Olmen
chris.van.olmen@vow.be
Van Olmen & Wynant
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LEGISLATION AND AGENCIES
Primary and secondary legislation
What are the main statutes and regulations relating to employment?
Belgian employment law is largely uncodified, except for the Health and Safety Code and the Social Penal Code.
Therefore, most employment law is laid down in separate federal acts and executive royal decrees, the most important
of which is the Act on Employment Agreements of 3 July 1978.
Further, although most employment law matters are considered at the federal level, some matters have been delegated
to the regions (ie, Brussels, Flanders and Wallonia), including international employment (eg, work permits for foreign
citizens) and job placement services. Specifically, social partners (ie, trade unions and employers’ organisations) have
the competence to set out binding rules in national and sectoral collective bargaining agreements (CBAs). These
agreements are usually declared universally applicable. Therefore, national CBAs are an important part of Belgian
employment law.
Finally, CBAs can be concluded at the level of the undertakings, and certain rules can also be set out in companies’
internal work rules and policies.
Law stated - 01 April 2022
Protected employee categories
Is there any law prohibiting discrimination or harassment in employment? If so, what categories
are regulated under the law?
Discrimination is prohibited under the Anti-Discrimination Act of 10 May 2007, the Gender Act of 10 May 2007, and the
Anti-Racism Act of 30 July 1981.
The Anti-Discrimination Act prohibits discrimination based on age, current or future health status, disability, religion or
life philosophy, trade union membership and activities, marital status, birth, property, political opinion, language,
physical or genetic characteristics, and social origin.
The Gender Act prohibits discrimination based on sex, gender, pregnancy, childbirth or maternity, paternity, adoption,
breastfeeding, co-motherhood, medically assisted reproduction, gender transitioning, gender identity, gender
expression, and gender characteristics.
Harassment (whether moral, psychological, sexual or physical) in the workplace is forbidden by the Act of 4 August
1996 on well-being at work.
Law stated - 01 April 2022
Enforcement agencies
What are the primary government agencies or other entities responsible for the enforcement of
employment statutes and regulations?
Most provisions of social law are protected with a penal sanction (in the Social Penal Code). The enforcement of these
provisions is covered by the Social Inspectorates of the Federal Public Service of Work and of the National Office of
Social Security, which have different departments. Further, Belgium has a special public prosecutor for social affairs
who can prosecute breaches of social law, before the criminal courts, but also has the ability to bring civil claims before
the labour courts. In certain matters, trade unions and organisations like Unia (an anti-discrimination organisation) can
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bring cases to the courts to defend the interests of employees.
Law stated - 01 April 2022
WORKER REPRESENTATION
Legal basis
Is there any legislation mandating or allowing the establishment of employees’ representatives in
the workplace?
This is covered by the Act of 20 September 1948 on the organisation of economic life (for works councils), Title 7 of
Book II of the Codex on well-being at work (for health and safety committees), and Collective Bargaining Agreement
No. 5 of 24 May 1971 (for trade union delegations).
Elected works councils are mandatory for companies with 100 or more full-time equivalent employees.
Elected health and safety committees are mandatory for companies with 50 or more full-time equivalent employees.
Trade union delegations should be formed when one of the representative trade unions requests this of the employer,
or in conformity with procedures laid down at the sector level in collective bargaining agreements (CBAs).
Law stated - 01 April 2022
Powers of representatives
What are their powers?
Information and consultation are carried out by the company’s works council. If there is no works council, the health
and safety committee or trade union delegation will take over certain competencies.
A works council should convene regularly to receive information on the economic situation of the company. It also has
stronger powers than a health and safety committee or a trade union delegation. For example, a company must obtain
a work council’s approval when setting up or adapting internal work rules, and a works council must be consulted and
informed in cases of collective dismissal.
An employer must involve the health and safety committee when planning preventive measures.
A trade union delegation has the right to defend the interests of workers and can demand to be heard by the employer.
Law stated - 01 April 2022
BACKGROUND INFORMATION ON APPLICANTS
Background checks
Are there any restrictions or prohibitions against background checks on applicants? Does it make
a difference if an employer conducts its own checks or hires a third party?
Background checks must respect the right to privacy and the data protection rules of the EU General Data Protection
Regulation (GDPR), the principle of relevance (for the job), laid down in Collective Bargaining Agreement No. 38, and
prohibitions on discrimination. For example, it is prohibited to request criminal records, except for in the case of
specific professions for which it is relevant, and it is also unlawful to ask for someone’s credit history as this could be
considered discriminatory. In light of the GDPR, the processing of sensitive data (eg, ethnicity, race and sexual
orientation) is, in principle, prohibited. Moreover, third parties are also bound by these rules and employers can be held
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responsible should the actions of a third party that breach these rules be linked to an employer.
Law stated - 01 April 2022
Medical examinations
Are there any restrictions or prohibitions against requiring a medical examination as a condition
of employment?
Medical testing before hiring the employee may only take place within the strict framework of the Act of 28 January
2003 by an occupational physician (prevention adviser) to assess an applicant’s current aptitude for a job that entails
specific safety requirements. Tests for AIDS and HIV, and predictive genetic examinations are strictly prohibited under
article 3, section 2 of this Act. The Act contains no specific prohibition concerning other bloodborne pathogens or
diseases. Medical testing that is not relevant for the job can constitute prohibited discrimination based on health
status.
Law stated - 01 April 2022
Drug and alcohol testing
Are there any restrictions or prohibitions against drug and alcohol testing of applicants?
General drug screenings are prohibited. Employers can request for these tests to be conducted by their occupational
physician only in limited circumstances. Employers should maintain a clear alcohol and drugs policy and include
mandatory provisions in their internal work rules. Alcohol and drug testing can only be used by an occupational
physician to check whether the applicant is medically capable of performing their work. Occupational physicians
cannot communicate test results to the employer.
Law stated - 01 April 2022
HIRING OF EMPLOYEES
Preference and discrimination
Are there any legal requirements to give preference in hiring to, or not to discriminate against,
particular people or groups of people?
The Royal Decree of 11 February 2019 lays down a framework to allow for positive discrimination in hiring. The
conditions are:
there is a manifest inequality;
the purpose and method of the action is clear and adequate;
the positive action is temporary (at maximum for three years);
the action does not unnecessarily limit the rights of others; and
the action is proportional.
The measure for positive action must be laid down in a collective bargaining agreement (CBA) or through a specific
procedure in the company (if it is not possible to conclude a CBA) and must be approved by the Minister of Work.
In general, employers are very reluctant to make use of these procedures as they are considered complicated and
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burdensome.
Law stated - 01 April 2022
Must there be a written employment contract? If yes, what essential terms are required to be
evidenced in writing?
There is no obligation to conclude a written employment contract; oral employment contracts can be valid. However,
the following contracts must be in writing:
student contracts;
part-time contracts;
temporary contracts or contracts for a specific project;
home and telework contracts;
temporary agency contracts; and
replacement contracts.
Some specific clauses in the employment contract must also be in writing; for example, schooling and non-compete
clauses.
It is always recommendable to conclude a written employment contract to prevent legal disputes.
Law stated - 01 April 2022
To what extent are fixed-term employment contracts permissible?
The ability of parties to enter into multiple consecutive fixed-term employment contracts is restricted by the
Employment Contracts Act. The Act provides that a maximum of four consecutive contracts of a minimum of three
months and for a total duration of up to two years may be entered into; however, consecutive contracts of a minimum
of six months and for a total duration of three years may be entered into if the prior consent of the Labour Inspectorate
is obtained. If this restriction is violated, consecutive fixed-term employment contracts will be considered as a contract
for an indefinite term, unless the employer proves that these contracts were justified because of the nature of the job or
because of another legitimate reason.
Employment contracts for specific projects or replacement contracts are also types of fixed-term contracts. In 2021,
the Constitutional Court made it clear that employers are not allowed to circumvent duration limits by alternating
temporary contracts with replacement contracts.
Law stated - 01 April 2022
Probationary period
What is the maximum probationary period permitted by law?
The general probationary period was abolished in 2014 and is no longer allowed. However, a probationary period is still
possible for student contracts, temporary work and temporary agency work. For these contracts, the probationary
period (the first three days of the contract) automatically applies and, therefore, does not need to be inserted into the
written employment contract.
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Law stated - 01 April 2022
Classification as contractor or employee
What are the primary factors that distinguish an independent contractor from an employee?
The Labour Relations Act of 2006 looks at four criteria:
the true will of the parties (to be inferred from both the written agreement and the actual situation);
the contractor’s freedom to organise their working time, specifically whether:
they can freely choose their work assignments and working hours;
they must justify illness;
they can choose to account for holidays; and
the employer has control over the individual’s use of time;
the free organisation of the work, specifically:
whether the individual can freely choose and refuse assignments;
the nature of the agreement;
the reporting requirements;
the imposition of rules of conduct or objectives; and
who pays the salary and who bears the costs; and
the possibility of hierarchical control or subordination, specifically:
whether the employer can impose penalties;
whether there is an established means of control;
the nature of reporting; and
the nature of control.
Law stated - 01 April 2022
Temporary agency staffing
Is there any legislation governing temporary staffing through recruitment agencies?
The relevant rules are laid down in the Act of 24 July 1987 on temporary work, temporary agency work and the
secondment of workers to users. In the context of temporary agency work, an employment contract is entered into
between a temporary work agency (the interim office) and an employee. The employee then carries out temporary work
intending to replace a permanent employee, respond to a temporary work overload, or performs work of exceptional
nature for a client of the agency (the user). Temporary agency work may also apply for integration purposes in the
sense that it is permissible to lease interim employees to users to provide these employees with a permanent job with
the user at the end of the leasing period.
Since 1 February 2017, a temporary work agency can, in principle, also conclude an open-ended employment contract
with an interim employee, which is then supplemented with separate ‘customer contracts’ between the temporary work
agency and the user.
Law stated - 01 April 2022
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FOREIGN WORKERS
Visas
Are there any numerical limitations on short-term visas? Are visas available for employees
transferring from one corporate entity in one jurisdiction to a related entity in another jurisdiction?
There is no numerical limitation on short-term visas for workers coming outside of the European Economic Area (EEA).
Workers from the EEA have, in principle, the right to work in Belgium.
Employees transferring from a corporate entity in one jurisdiction (outside the EEA) to a related entity in another
jurisdiction need to follow the intra-corporate transfer procedure to obtain a single permit (comprising both
permissions to stay and work) or a work permit if less than 90 days. This procedure is only available for managers (for
a maximum of three years), experts (for a maximum of three years) and trainees (for a maximum of one year).
Law stated - 01 April 2022
Spouses
Are spouses of authorised workers entitled to work?
If an authorised worker and his or her spouse are from outside the EEA, the spouse may accompany or join the
authorised worker, provided that the spouse meets the conditions for family reunification. However, this does not
entitle the spouse to work.
Law stated - 01 April 2022
General rules
What are the rules for employing foreign workers and what are the sanctions for employing a
foreign worker who does not have a right to work in the jurisdiction?
Citizens of the EEA have the right to work in Belgium. Employers who wish to employ third-country nationals, in
principle, have to apply for a single permit (comprising both permission to stay and work). The competent region (ie,
Brussels, Flanders or Wallonia) will investigate the application for permission to work, and the Federal Aliens Office will
investigate the permission to stay.
An employer who employs a third-country national without obtaining a single permit can be sanctioned, according to
article 175 of the Social Penal Code, with a prison sentence of between six months and three years, a criminal fine of
between €4,800 and €48,000, or an administrative fine of between €2,400 and €24,000 (multiplied by the number of
illegal employees). This is a level four sanction (the highest category of sanction).
Law stated - 01 April 2022
Resident labour market test
Is a labour market test required as a precursor to a short or long-term visa?
In principle, a labour market test must be met for an employer to obtain a single permit. This means that obtaining a
single permit can be very difficult. However, some categories of workers are exempt from labour market tests. The
most important categories are:
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guest professors;
highly qualified workers, directors or executives (including ‘blue card’ applicants);
post-doctoral scholars;
researchers; and
temporary intra-corporate transfers.
The most common exemption is for highly qualified workers, which is only open to employees who receive annual
salaries of more than €44,097 in Brussels and Wallonia, and to those earning more than €45,096 in Flanders (2022
figures).
Law stated - 01 April 2022
TERMS OF EMPLOYMENT
Working hours
Are there any restrictions or limitations on working hours and may an employee opt out of such
restrictions or limitations?
Generally, the maximum working day in Belgium is nine hours, and the average working week is 38 hours. An
employee's working week can be extended to 40 hours if the worker receives 12 additional days of annual leave. Many
exceptions to this rule apply, but it is not possible for employees to simply opt out of the restrictions.
Law stated - 01 April 2022
Overtime pay
What categories of workers are entitled to overtime pay and how is it calculated?
In principle, overtime is prohibited. However, there are several exceptions to this rule, including where:
there is an extraordinary increase in workload;
there is a threat of an accident or the period following an accident;
urgent work on machinery or equipment must take place;
urgent work is necessary owing to unforeseen circumstances; or
stocktaking and preparing accounts are necessary.
In principle, employees are entitled to overtime pay for work performed in excess of the limits of nine hours per day and
40 hours per week (or lower limits determined by a collective bargaining agreement (CBA) that involves an effective
reduction of daily or weekly working time).
Overtime pay must be provided that is at least one-and-a-half times the employee’s regular rate of pay, and twice their
regular rate of pay for overtime performed on a Sunday or a public holiday.
Employees can agree to undertake voluntary overtime respecting a maximum working time of 11 hours per day and 50
hours per week. Such agreements remain valid for six months. Employers must compensate voluntary overtime hours
with overtime pay at rates of between 150 per cent to 200 per cent of employees’ regular pay, but they do not have to
compensate employees with rest periods or days.
An employee may choose, on an individual basis, to undertake a maximum of 100 hours of voluntary overtime per year.
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However, this can be extended to 360 hours through a CBA at the sector level. During the covid-19 pandemic, the 100-
hour limit on overtime was temporarily extended to 220 hours in certain essential sectors.
Employees with a leading function or position (as laid down in the Royal Decree of 10 February 1965) are exempt from
most of the rules on working time, therefore cannot claim overtime pay.
Law stated - 01 April 2022
Can employees contractually waive the right to overtime pay?
No, this is not allowed.
Law stated - 01 April 2022
Vacation and holidays
Is there any legislation establishing the right to annual vacation and holidays?
The relevant provisions regarding annual leave are laid down in the Act of 29 June 1971. In proportion to the number of
days that an employee worked during the preceding calendar year or is deemed to have worked (eg, in cases of
maternity or sick leave), referred to as the ‘holiday reference year’, the employee will be entitled to several days of
annual leave in the current calendar year – the ‘holiday year’.
Generally, for a fully worked holiday reference year, employees are entitled to between 20 and 24 days of annual leave,
the number depending on whether their working regime includes five or six working days per week. This is a statutory
minimum that can be increased (but not decreased) by CBAs made at the sectoral or company level.
Even if an employee did not work a full year during a ‘holiday reference year’, they will be able to take at least 20 days of
annual leave (based on full-time employment) due to the EU Working Time Directive (2003/88). This allowance is called
‘additional’ or ‘European’ holidays. For example, if an employee has worked six months during the holiday reference
year, the Belgian system would grant him or her 10 legal days of annual leave. However, these 10 days will be topped up
by 10 additional days, so the employee will be granted the Directive’s minimum allowance of 20 days.
Employers are free to provide employees with more days of annual leave than the legal requirement.
Law stated - 01 April 2022
Sick leave and sick pay
Is there any legislation establishing the right to sick leave or sick pay?
The relevant provisions are laid down in the Royal Decree of 3 July 1996, executing the Act of 14 July 1994 on
compulsory insurance for medical care and benefits.
A white-collar employee will continue to receive his or her normal salary for 30 calendar days following an illness or
private accident. However, a blue-collar employee will only continue to receive his or her normal salary for seven
calendar days. This is referred to as the ‘guaranteed salary’.
Following the period covered by the guaranteed salary, an employee will receive sickness benefits from the Health
Insurance Fund during his or her first year of incapacity. The amount is capped at 60 per cent of the employee’s gross
remuneration.
The employee is entitled to an invalidity allowance from the second year of incapacity if the National Institute for
Sickness and Invalidity Insurance confirms his or her invalidity (the level of incapacity for work must be at least 66 per
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cent). This allowance amounts to between 40 per cent and 65 per cent of his or her gross capped remuneration
(depending on his or her family situation).
Law stated - 01 April 2022
Leave of absence
In what circumstances may an employee take a leave of absence? What is the maximum duration
of such leave and does an employee receive pay during the leave?
Employees have the right to be absent from work without salary loss, as follows:
certain family events, such as:
the employee’s marriage: two days;
death of the employee’s partner or child: 10 days;
death of the employee’s parent or their parent’s partner: three days;
death of the employee’s sibling, grandparent, grandchild or their partner: one day (or two days if the decedent
lived with the employee); and
the holy communion or other non-confessional youth celebration of the employee’s child: one day; and
civil duties (eg, jury service and participation in the electoral process); and
court appearances.
A Royal Decree of 1963 provides the reasons for such periods of short leave and the duration of allowed absences;
however, more favourable provisions may be provided at the sector or company level.
If the circumstances do not fall under the short leave system, a worker still has the right to be absent from work for
‘compelling reasons’. A ‘compelling reason’ means any unforeseeable event, independent of the employee’s work, that
requires the employee’s urgent and necessary intervention and the execution of which makes fulfilling their
employment contract impossible (eg, the unforeseen hospitalisation of a child). The employee can take up to 10 days
of leave per year for compelling reasons. In principle, this leave is unpaid.
There are also leave and time credit systems that are compensated by social security allowances, namely:
pregnancy leave, of up to 15 weeks;
paternity leave, of up to 15 days (as of 2021);
parental leave, of up to three months, if the contract is suspended full-time;
adoption leave, of up to seven weeks;
leave for foster parents, of up to six days per child;
palliative care leave, of up to one month, in principle;
care leave, of up to six months, if the contract is suspended full-time; and
educational leave, the duration of which depends on the competent region (eg, in Flanders, the maximum is 125
hours).
Finally, there is a specific system of political leave that allows employees to take up political mandates without losing
their remuneration.
Law stated - 01 April 2022
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Mandatory employee benefits
What employee benefits are prescribed by law?
Employees receive single and double holiday pay. The situation differs between blue- and white-collar employees.
Blue-collar employees receive 15.38 per cent of their gross annual salary, rounded up to 108 per cent, which is paid by
the social security system. This percentage corresponds to two times four weeks of salary (single and double holiday
pay).
White-collar employees receive their normal salary (single holiday pay) during their annual leave, and double holiday
pay amounting to 92 per cent of their gross monthly salary, which is paid directly to the employee by the employer
when he or she takes his or her main holiday.
Also, most sectors entitle employees to a 13th month ‘end-of-the-year’ premium. These are often laid down in sector-
level CBAs. Some sectors also make other benefits mandatory, such as eco-vouchers.
Law stated - 01 April 2022
Part-time and fixed-term employees
Are there any special rules relating to part-time or fixed-term employees?
Part-time employees
Employment contracts for part-time employees must be in writing, including the agreed part-time working arrangement
(ie, the weekly working hours) and the agreed work schedule (which determines the days and hours worked).
The weekly working time may not be less than one-third of the weekly working time of full-time workers of the same
category in the enterprise. In the absence of such full-time workers, reference must be made to the working time
applicable in the same sector of activity. Exemptions are possible by royal decree, or sectoral or company CBAs.
Employees who are bound by part-time employment contracts have, under certain conditions, priority to obtain vacant
full-time or part-time positions with their employer, and may not be discriminated against in comparison with full-time
employees.
Fixed-term employees
Fixed-term employees’ employment contracts must be in writing.
The employer and the employee may conclude a maximum of four successive fixed-term employment contracts,
provided that the duration of each contract is no less than three months, and the total duration of the contracts does
not exceed two years.
Subject to the prior consent of the Social Inspection, successive employment contracts can be concluded for a fixed
period, each with a minimum duration of six months, provided that the total duration of the contracts do not exceed
three years.
An employment contract for a definite period automatically ends upon the expiry of the agreed period or the completion
of the agreed work. There are no notice periods.
The employer is obliged to inform employees with a fixed-term contract, or a clearly defined job, of any vacancies in the
company that may guarantee them permanent employment.
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Fixed-term employees may not be discriminated against in comparison to employees with contracts for indefinite
periods.
Law stated - 01 April 2022
Public disclosures
Must employers publish information on pay or other details about employees or the general
workforce?
There are no general obligations to publish such information in Belgium in the private sector.
However, since 2012, every employer is obliged to include an overview of personnel and salary data by gender in their
annual social report. Companies with more than 50 employees must also draw up an analysis report of their
remuneration structure every two years and supply the report to the works council, or to the trade union delegation if
there is no works council.
Law stated - 01 April 2022
POST-EMPLOYMENT RESTRICTIVE COVENANTS
Validity and enforceability
To what extent are post-termination covenants not to compete, solicit or deal valid and
enforceable?
Generally, unfair competition by former employees is prohibited by law, the prohibition taking effect after the
termination of the employment contract. However, it does not prevent employees from seeking a new employment
contract with a competitor of the employer. Such a prohibition requires the inclusion of a non-compete clause in the
employment contract.
For a non-compete clause to apply after an employment contract has been terminated, strict conditions must be met.
For example, the clause must be in writing and will be valid only if the employee’s annual gross remuneration exceeds
€36,785 (2022 figure). Further restrictions apply where the employee’s remuneration does not exceed €73,571 (2022
figure) – specifically a collective bargaining agreement (CBA) authorising the non-compete clause must be entered into
at the company or industry level.
Generally, non-compete clauses are valid, provided that:
they are limited to activities similar to those presently performed by the employee;
they are limited to a well-defined geographical area within Belgium;
they do not exceed 12 months; and
the new employer is a competitor.
Except in the case of sales representatives, non-compete clauses must provide for an indemnity payment to the
employee equal to at least 50 per cent of the salary corresponding to the duration of the provision.
Non-compete clauses are invalid if:
the employer terminates the contract during the first six months of employment;
after the first six months of employment, the employer terminates the employment contract with a notice period
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or an indemnity in lieu of notice; or
the employee terminates the agreement based on a serious breach by the employer.
Special non-compete clauses
Provided that some specific requirements are met, various deviations from standard provisions in a non-compete
clause can be included (ie, ‘special’ non-compete clauses). These deviations may only be used for certain categories of
enterprise and for white-collar employees (except sales representatives) with specific functions. To fall within this
category, an enterprise must either:
carry out an international activity or have considerable economic, technical or financial interests in international
markets; or
have its own research department.
In such enterprises, special non-compete clauses may be applied only to those employees whose work allows them to
directly or indirectly acquire a practice or knowledge that is unique to the enterprise and that could be detrimental if
used by another entity. If these conditions are met, it is possible to deviate from the standard non-competition clause,
insofar as its geographical application is restricted to the national territory of Belgium and is limited to 12 months.
Special non-compete clauses may also apply when an employment contract is terminated by the employer with a
notice period, or indemnity in lieu of notice, after the first six months of employment have lapsed, or if the contract is
terminated during the first six months of employment.
Non-solicitation clauses
Finally, it is also possible to insert non-solicitation clauses in employment contracts. Belgian law does not pose
stringent conditions on such clauses. Such a clause would prevent the employee from working for a customer of their
employer with whom he or she was in contact during the last period of his or her employment, for a certain period after
the termination of their employment.
If the employee violates this obligation, he or she will have to pay a fixed amount to their former employer. However, if
the non-solicitation clause is described too broadly, a judge may regard it as null and void, as the use of such a clause
could be seen as an abuse of rights. Therefore, it is recommended employers identify and list the specific customers
an employee is not allowed to be employed by and to reasonably limit the prohibition in time.
Law stated - 01 April 2022
Post-employment payments
Must an employer continue to pay the former employee while they are subject to post-
employment restrictive covenants?
Standard non-compete clauses must provide for an indemnity payment to the employee that is equal to at least 50 per
cent of the salary corresponding to the duration of the non-compete provision. This means a maximum of six months
of salary (as the maximum duration of a standard non-compete clause is 12 months).
Law stated - 01 April 2022
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LIABILITY FOR ACTS OF EMPLOYEES
Extent of liability
In which circumstances may an employer be held liable for the acts or conduct of its employees?
It is possible that during the execution of the employment contract, for an employee to commit an error that damages
the employer or a third party (eg, another employee or a customer of the employer). In these cases, the employee’s civil
liability is limited to the damage resulting from fraud, serious misconduct, or slight negligence that is more common
than accidental. ‘Fraud’ implies a deliberate fault that always presupposes the will to harm. ‘Serious misconduct’
involves misconduct so great and excessive in nature that the person committing the act cannot be forgiven. A ‘slight
error that usually occurs’ involves repeatedly committing an error that a normally attentive person would not commit.
This rule only limits the employee’s liability. The employer remains civilly liable for any damage caused to a third party
by any fault of the employee.
Law stated - 01 April 2022
TAXATION OF EMPLOYEES
Applicable taxes
What employment-related taxes are prescribed by law?
Employers pay social security contributions and withhold the employee’s social security contributions, as well as
withholding taxes. The rates for these are based on an employee’s gross salary. Most employers rely on payroll
agencies to handle their payroll administration, as social security and tax calculations are complex.
The employer’s social security contributions vary from approximately 25 per cent to 32 per cent of an employee’s gross
salary or wages. The rate varies, based on whether an employee is defined as a white-collar or a blue-collar worker and
the number of employees in the company.
The employee’s social security contributions are 13.07 per cent. Withholding taxes also vary based on the amount of
the employee‘s salary or wages. However, withholding taxes also vary based on the employee’s family status (eg,
parents, and married or legally cohabiting partners receive certain reductions).
Law stated - 01 April 2022
EMPLOYEE-CREATED IP
Ownership rights
Is there any legislation addressing the parties’ rights with respect to employee inventions?
There is no specific legislation. Employment contracts typically contain a clause that states that the employer owns all
intellectual property (IP) rights in work created by an employee. If such a clause is absent and there is no specific
contract on the transfer of IP rights, the employee will retain authorship and patent rights. However, for computer
programs, databases, drawings, models and branding, there is a legal assumption that any IP rights therein are
transferred to the employer.
In any case, including a clause transferring IP rights to the employer in employment contracts is highly recommended.
Law stated - 01 April 2022
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Trade secrets and confidential information
Is there any legislation protecting trade secrets and other confidential business information?
Article 17 of the Employment Contracts Act protects trade secrets and any confidential information that an employee
may have acquired in the course of his or her employment. Trade secrets are defined by article I.17/1(1) of the Code of
Economic Law as information that:
is secret in the sense that it is not, as a whole or in the precise configuration and assembly of its components,
generally known among, or readily accessible to, persons within the circles normally involved in the type of
information concerned;
has commercial value because it is secret; and
has been subject to reasonable measures of confidentiality by the person lawfully in possession of it, concerning
the circumstances of the case.
Article 309 of the Penal Code punishes the unlawful communication of trade secrets with imprisonment for three
months to three years or a fine ranging from €400 to €16,000 or both. However, this sanction requires malicious intent
on behalf of the employee.
Law stated - 01 April 2022
DATA PROTECTION
Rules and obligations
Is there any legislation protecting employee privacy or personnel data? If so, what are an
employer’s obligations under the legislation?
The right to privacy is a fundamental right. It is enshrined in article 22 of the Belgian Constitution and article 8 of the
European Convention on Human Rights (ECHR). An employee’s right to privacy encompasses his or her employment
environment.
An employer might violate an employee’s right to privacy by collecting or processing data; thus, the social partners have
adopted several collective bargaining agreements (CBAs) that legislate different ways of collecting employees’ data.
These include:
CBA No. 81 on electronic communication;
CBA No. 68 on security cameras; and
CBA No. 100 on alcohol tests.
In all these cases, the employer, within certain limits, may collect the information, provided that it complies with a
procedure that respects the principles set out in article 8 of the ECHR (purpose, proportionality and transparency of the
control). CBA No. 38 also protects the right to privacy of prospective employees during recruitment.
The EU General Data Protection Regulation (GDPR) also applies to Belgian employment relationships, and the Belgian
Act of 30 July 2018 has implemented and specified certain GDPR rules. The GDPR seeks to enhance the level of data
protection for individuals whose personal data is processed and give them more control over their data. It poses strict
conditions on an employer that wants to process the personal data of their employees, especially if sensitive data is
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involved (eg, data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual
orientation, trade union membership, and genetic, biometric or medical data), which in principle is prohibited. Generally,
employees cannot give their free consent for the processing of their data to their employer, unless it is clearly in their
benefit. Data subjects also have the right to withdraw consent at any time and to be informed about what happens to
their personal data once it has been processed, as well as the rights to have access to, rectify or erase personal data
(the right to be forgotten) or to transmit their data to a third party (data portability). The GDPR also obliges the
employer to process personal data as securely as possible and to limit the retention period of data.
Law stated - 01 April 2022
Do employers need to provide privacy notices or similar information notices to employees and
candidates?
Based on the transparency rule in article 13 of the GDPR, the employer will have to provide a privacy notice to the
employee or prospective employee when he processes their data.
This notice will explain, for example:
the legal ground of the processing;
the processing purpose;
the rights of the data subject;
the retention period; and
the fact of whether the data will be transferred to a third country.
This information can also be included in a GDPR or Privacy policy (in which case it is not necessary to provide a privacy
notice).
Law stated - 01 April 2022
What data privacy rights can employees exercise against employers?
Based on the EU General Data Protection Regulation (GDPR), an employee can retract his or her consent for the
processing of their private data by their employer (if the employee’s free consent is the processing ground).
Further, under certain conditions, an employee can also request:
to see the processed private data held by their employer;
to correct private data information held by their employer; and
their private data be deleted (eg, when storage of the data is no longer necessary (ie, the right to be forgotten)).
Further, employees also hold the right to restrict the processing of their private data, to data portability, and to object to
automated individual decision-making based on their private data.
Employees who believe their employers are not respecting the GDPR may file a complaint with the Belgian Data
Protection Authority. The Authority can investigate the matter, and impose measures and fines should it find the
employer is violating the GDPR.
Law stated - 01 April 2022
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BUSINESS TRANSFERS
Employee protections
Is there any legislation to protect employees in the event of a business transfer?
Based on Directive 2001/23/EC, and to safeguard employees’ rights in the event of transfers of undertakings,
businesses or parts of undertakings or businesses, Collective Bargaining Agreement No. 32-bis of 7 June 1985
provides the framework for the rules regarding transfers of undertakings in Belgium. It maintains employees’ rights in
the event of ‘any change of employer arising from a conventional transfer of undertaking or part of an undertaking’.
Employees’ rights are, therefore, safeguarded in the event of a sale or acquisition of a business. This includes
prohibitions on dismissing employees as a consequence of the transfer and on significantly amending working
conditions.
Before the employer or management formally adopts a decision to transfer, the transferring employer (the transferor)
and the new employer (the transferee) must each inform their respective employee representative bodies about the
transfer. In the first place, this information should be delivered to the works council; however, in the absence thereof,
the trade union delegation or, in the absence thereof, the health and safety committee (the committee for prevention
and protection at work) must be informed. If no employee representative bodies within the undertaking exist, individual
employees should be informed.
There is also an obligation to consult the employee representative bodies, in particular regarding the repercussions on
the employment prospects for the employees, the organisation of the work and the employment policy in general.
Consultations of the employee representative bodies are not binding upon the employer.
There is no set time frame for the information and consultation procedure; however, it must take place before the
formal decision on the planned transfer is taken. Article 196 of the Social Penal Code sanctions the failure to comply
with this obligation to a fine of €400 to €4,000, multiplied by the number of employees employed in the company, up to
a maximum of €400,000.
In the event of a transfer of undertaking within the framework of Collective Bargaining Agreement No. 32-bis, the rights
and obligations of the transferor that originate in the employment contracts and exist on the date of transfer are
automatically transferred to the transferee. It is not possible to derogate from the automatic transfer with contractual
agreements between the transferor and the transferee.
Law stated - 01 April 2022
TERMINATION OF EMPLOYMENT
Grounds for termination
May an employer dismiss an employee for any reason or must there be ‘cause’? How is cause
defined under the applicable statute or regulation?
In principle, there is no limitation on the causes for dismissal; however, according to the Collective Bargaining
Agreement (CBA) No. 109, the cause must not be manifestly unreasonable.
A manifestly unreasonable dismissal is the dismissal of an employee based on reasons that are not related to the
suitability or conduct of the employee, or that are not based on the necessities of the operation of the undertaking,
institution or service, and that would never have been decided upon by a normal and reasonable employer.
In the case of dismissal owing to urgent reasons, the law requires a serious fault of the employee that makes any
further professional cooperation between the two parties immediately and permanently impossible. The party invoking
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the urgent reason condition must prove its existence.
Of course, a dismissal also cannot be given because of discriminatory reasons.
Law stated - 01 April 2022
Notice
Must notice of termination be given prior to dismissal? May an employer provide pay in lieu of
notice?
An employer can choose to terminate an employment contract either with prior notice or i mmediately and pay an
indemnity in lieu of notice.
A combination of both, where service of a notice period is followed by an indemnity for the remainder of the notice
period, is also possible.
Law stated - 01 April 2022
In which circumstances may an employer dismiss an employee without notice or payment in lieu
of notice?
A unilateral dismissal without notice, or payment in lieu of notice, for open-ended contracts is only possible in the case
of dismissal owing to an urgent reason (‘serious cause’). An ‘urgent reason’ is a serious fault of the employee that
makes any further professional cooperation between the two parties immediately and permanently impossible. The
employer invoking the urgent reason condition must prove its existence and follow a strict procedure to notify the
employee of the dismissal and the reason.
Otherwise, an employment contract can end without a notice period or a payment in lieu of notice in the following
circumstances:
the end of the term of the contract;
the end of the task for which the contract was concluded;
force majeure; or
the death of the employee.
Law stated - 01 April 2022
Severance pay
Is there any legislation establishing the right to severance pay upon termination of employment?
How is severance pay calculated?
The rules regarding severance pay are laid down in the Employment Agreements Act. Any indemnity in lieu of notice is
calculated based on the employee’s annual salary at the time of termination, including statutory and contractual fringe
benefits. The employee will receive remuneration that is equal to his or her salary during the notice period had the
employer opted to give notice.
Law stated - 01 April 2022
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Procedure
Are there any procedural requirements for dismissing an employee?
To be valid, notice must be given in writing and must specify the starting date and the duration of the notice period. If
the employer terminates the contract, notice must be served by registered mail or by a bailiff. Moreover, notice must be
given in the correct language. Failing this may result in the notice being deemed null and void, in which case the
employment contract will have been terminated without serving notice, so the employer will be obliged to pay an
indemnity in lieu of notice.
If the employment contract is terminated with the payment of an indemnity in lieu of notice, no specific formalities
need to be complied with.
Based on CBA No. 109, the employee has the right to ask the employer (by registered letter) to give the reason for the
dismissal (which cannot be manifestly unreasonable) within two months of the dismissal. The employer must answer
this request, stating the reasons for the dismissal, by registered letter within two months of receiving the request. The
employer can also spontaneously communicate the reasons for the dismissal to the employee.
If the dismissal is given owing to urgent reasons, the employer must dismiss the employee within three working days of
the day it became aware of the facts (serious misconduct) and must inform the employee, by registered mail, of the
grounds of his or her dismissal at the same time or within an additional period of three working days. If these deadlines
and formalities are not complied with, the dismissal for serious cause will be considered irregular, and an indemnity in
lieu of notice will be due to the employee.
Law stated - 01 April 2022
Employee protections
In what circumstances are employees protected from dismissal?
Belgian law provides specific protection from dismissal for:
pregnant women;
workers on maternity or paternity leave;
workers on adoption leave;
worker representatives or candidate worker representatives;
trade union delegates;
prevention advisors;
workers who hold a political mandate;
workers taking a time credit, a career break or thematic leave;
workers taking paid educational leave;
employees who have made observations concerning certain amendments to the internal work rules; and
employees who have submitted a complaint or instituted legal proceedings in respect of:
the equal treatment of men and women;
violence, harassment or undesirable sexual behaviour at work (the protection also covers employees who act
as witnesses in this respect);
racism and xenophobia; or
certain forms of discrimination.
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These persons can still be dismissed if the termination is not related to the reason why they are protected (eg, leave,
mandates, function and complaints, etc).
New dismissal protection for whistleblowing employees is expected after the transposition of the EU Whistleblower
Directive (Directive (EU) 2019/1937 of the European Parliament) into Belgian law in 2022.
Law stated - 01 April 2022
Mass terminations and collective dismissals
Are there special rules for mass terminations or collective dismissals?
Where multiple redundancies qualify as a collective dismissal, the legislation on collective dismissals and the closure
of undertakings (if necessary) apply. The legislative framework is provided in:
CBA No. 10 relating to collective dismissals;
CBA No. 24 relating to the procedure for informing and consulting employees’ representatives in the event of
collective redundancies; and
the Act of 13 February 1998, which establishes the provisions for the promotion of employment.
A collective dismissal, or the closure of an undertaking, triggers several specific requirements that employers must
adhere to, including:
prior information and consultation obligations with employee representatives;
several notice requirements to the authorities;
indemnity payments; and
redeployment initiatives.
Law stated - 01 April 2022
Class and collective actions
Are class or collective actions allowed or may employees only assert labour and employment
claims on an individual basis?
In principle, the individual interest of the employee will be necessary to bring a case before the court. However, the
Court of Cassation (Supreme Court, 11 June 2018, S. 150072.N) has ruled that Unia (the federal anti-discrimination
institution) can assert discrimination claims on behalf of an undefined number of persons. Trade unions also have the
right to bring claims before courts to enforce CBAs that they concluded on behalf of their members.
Law stated - 01 April 2022
Mandatory retirement age
Does the law in your jurisdiction allow employers to impose a mandatory retirement age? If so, at
what age and under what limitations?
The legal retirement age (currently 65 years old) is a mandatory provision. Only the legislator can deviate from this
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provision. Also, employment agreements do not end automatically when the employee reaches the retirement age. The
employer will have to give a (reduced) notice period. Further, an employee can continue working after he or she reaches
retirement age. In this regard, the legal retirement age is not mandatory for employees.
Law stated - 01 April 2022
DISPUTE RESOLUTION
Arbitration
May the parties agree to private arbitration of employment disputes?
Mandatory arbitration agreements or clauses are null and void. Workers can always bring cases before the labour
courts.
Law stated - 01 April 2022
Employee waiver of rights
May an employee agree to waive statutory and contractual rights to potential employment claims?
An employee will, in principle, be entitled to bring a case concerning their employment relationship before the labour
courts. Employees cannot waive these rights before they are acquired (eg, an employee cannot waive his or her right to
a notice period before dismissal has taken place).
However, employees can waive their rights after they are acquired (eg, it is possible to waive a right to bring a claim
regarding a notice period before the courts in a settlement agreement).
The closing of a settlement agreement on the consequences of dismissal will only be valid after the dismissal has
taken place. Finally, a settlement agreement also demands reciprocity between the parties, therefore the employer will
have to offer something in return.
Law stated - 01 April 2022
Limitation period
What are the limitation periods for bringing employment claims?
Article 15 of the Employment Agreements Act stipulates that legal claims arising from an employment contract lapse
one year after the end of the employment contract, or five years after the fact from which the claim arose, without this
period exceeding one year after the end of the employment contract.
Law stated - 01 April 2022
UPDATE AND TRENDS
Key developments of the past year
Are there any emerging trends or hot topics in labour and employment regulation in your
jurisdiction? Are there current proposals to change the legislation?
Belgium will transpose the EU Whistleblowers Directive (Directive (EU) 2019/1937 of the European Parliament) in 2022.
This new law will bring significant changes, as Belgium law does not currently have a system for protecting whistle-
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