Newsletter 2023 – 02
1 Rush Hour HR – March 14, 2023 – 4Wings (Westerlo)
You can take lessons on site or online. You can register here . The program looks like this:
2 Publications
by Mr. Ludo Vermeulen appeared in the Juristenkrant of February 8, 2023, entitled “Family responsibilities: an endless concept?”. You can read it here .
3 The register of temporary workers + social elections in sight
1. Exemption from keeping the register of temporary workers
In the period from May 13 to 26, 2024, all companies that normally employ an average of 50 workers must hold elections for the appointment of the workers' delegation to a committee for prevention and protection at work. Companies that usually employ an average of 100 employees must also hold elections to appoint this delegation to the works council.
The social elections regulations oblige the employer to soon keep a register of the temporary workers it employs. But exemption is possible.
Action point: if your company employs more than 100 employees and you will therefore have to organize elections for a works council without discussion, it is best to have this recorded in a meeting of your works council (no later than March 31, 2023). This way you avoid the administrative hassle of maintaining the register of temporary workers.
2. Not only employees, but also temporary workers count
The calculation of the thresholds of 50 and 100 is done on the basis of the number of employees (and equivalents) and temporary workers that a company employs.
For employees (and equivalent categories such as students), this average employment is calculated on the basis of the number of days they were employed by the company in the period from the 4th quarter of 2022 (October 1, 2022) to and with the 3rd quarter 2023 (September 30, 2023). For temporary workers, their average employment is calculated over the 2nd quarter of 2023 (period April 1, 2023 to June 30, 2023). One category of temporary workers should not be taken into account for the application of the threshold. A temporary worker who replaces a permanent employee whose performance of the employment contract has been suspended does not count in the count. This makes sense because the employee whose employment contract has been suspended continues to count. If the temporary worker who replaces him were also included, there would be double counting for the same filled position.
3. All employers are obliged to keep an “appendix to the personnel register”.
Every employer is in principle obliged to keep an appendix to the personnel register (hereinafter the temporary workers register) and to include its temporary workers in it in the 2nd quarter of 2023 . This obligation also applies to those companies where it has been established that they do not meet the standard of 50 employees and therefore do not have to hold social elections.
The register of temporary workers must list all temporary workers. It must meet special conditions. It must be a paper-bound book in which each temporary worker who is employed is assigned a number according to a consecutive numbering, in the chronological order of his posting to the user. This must include the following for each temporary worker:
– the registration number
– his weekly working hours.
It is advisable to immediately include an entry in this register if the temporary worker replaces an employee whose performance of the contract has been suspended. After all, this will not have to be included later when counting the average number of temporary workers.
4. Exemption from the obligation to maintain the register of temporary workers
A company can be exempt from keeping the register of temporary workers. To this end, the company must obtain a unanimous statement from the works council (i.e. from the entire employer and employee delegation in the works council) stating that the threshold of 100 employees has been exceeded. This statement must be explicitly included in the minutes of the works council meeting.
The meeting at which this determination is made must take place before April 1, 2023.
Dirk Wijns, senior consultant Mploy
d irk.wijns@mploy.be – 0476 84 24 91
4 Case law – the presumption of discrimination
Liège Labor Court January 10, 2023, unedited.
The statement “does not meet the conditions” does not meet the requirement of communicating the specific reasons for the dismissal.
Dismissal due to pregnancy or incapacity for work as a result of pregnancy constitutes direct discrimination on the grounds of gender and health status.
In order to be able to rely on a presumption of discrimination and a shift in the burden of proof, the employee must prove that her employer was aware of the pregnancy. Since this evidence is not provided, the claim for lump sum compensation for discrimination is rejected.
The court does award compensation for manifestly unreasonable dismissal and estimates it at 7 weeks' wages.
1. Facts. Ms D. has been employed as an account manager by an employer active in tourism, the BV S, since September 16, 2016. After a suspension of several months due to the Covid19 pandemic, she will resume work at the beginning of 2020. She will be dismissed on September 15, 2020.
She claims that she was dismissed because of her pregnancy, which would constitute direct discrimination on the basis of gender and health status. According to S., she was fired because of her poor performance and poor sales results in July and August 2020 and S. was not even aware of her pregnancy.
2. Discrimination. In view of the rules regarding the distribution of the burden of proof, it is up to D. to demonstrate the existence of facts that suggest discrimination on the basis of gender and/or health status. If she were to succeed, it would be up to S. to prove that there was no discrimination.
D. claimed to have sent a letter to S. about her pregnancy in August 2020, but does not prove that it was sent, let alone its receipt. She had informed one of her colleagues about her pregnancy. However, that was not her hierarchical superior. The court decides that informing a colleague about a pregnancy is not equivalent to informing the employer.
The account manager also argued that she was just over four months pregnant at the time she was fired, so her pregnancy status would have been visible anyway. The Court did not share that view. According to the Court, the morphology and clothing style of an employee certainly make it possible that an employer cannot determine with certainty her state of pregnancy and, a fortiori, not during the fourth month of pregnancy.
The court annuls the decision of the labor court and declares the claim for a lump sum compensation of 6 months' wages due to discrimination to be unfounded.
3. Manifestly unreasonable dismissal. Despite Mrs. D.'s request, the employer S. had not provided the concrete reasons for the dismissal. The court considers the statement “ne remplit pas les conditions” insufficiently specific.
D. claimed and received compensation from the labor court equal to 17 weeks' wages, in addition to the compensation for discrimination... The fact that employer S. had failed to appear in the first instance is no surprise.
The court agrees with the decision of the first judge that the dismissal is manifestly unreasonable, but reduces the compensation to 7 weeks' wages.
The court's motives are worth mentioning. The court considers that the requirement is that the dismissal is “on the basis of a normal and justified employee”. That is not entirely (or not at all?) what collective labor agreement no. 109 stipulates. He is talking about a dismissal “that would never have been decided by a normal and reasonable employer”. In French: “qui n'aurait jamais été décidé par an employeur normal et raisonnable” (Article 8). By the way, the commentary on that provision in the collective labor agreement refers to a marginal assessment. The judge may not assess the appropriateness of the employer's policy.
The court finds that S. demonstrates with a certain credibility and on the basis of documents that D.'s performance after the suspension due to Covid19 was insufficient (2 points in June, July and August 2020, while she achieved 25 points in October 2019). . In addition, S. also referred to the difficult economic situation as a result of the long period of lockdown. The court then considers that S. does not submit any document about the return expected from D., nor about the results of the other employees or more generally about the results of the company for the period of June, July and August 2020. Ten Finally, S. had never formally or informally pointed out her poor results to her employee D.
The court considers the dismissal to be manifestly unreasonable, meaning a dismissal that would never have been decided by a normal and reasonable employer...
The court sets the compensation at 7 weeks' wages because the reasons for dismissal given by the employer were not proven, but on the other hand they were also not “complete with fantaisistes, with a view to their long-term employment”.
It is clear that certain case law goes very far in assessing employers' decisions to dismiss.
mr. Steven Vandebroek, lawyer
steven.vandebroek@mploy.be
Mr. Ludo Vermeulen
ludo.vermeulen@mploy.be