Newsletter 2023 – 02
1 Rush Hour HR – March 14, 2023 – 4Wings (Westerlo)
You can take classes either in person or online. You can register here. The program is as follows.
2 Publications
by Ludo Vermeulen appeared in the Juristenkrant on February 8, 2023, titled “Family responsibilities: a boundless concept?”. You can read it here .
3 The temporary workers register + social elections in sight
1. Exemption from maintaining the register of temporary workers
From May 13 to 26, 2024, all companies with an average of 50 employees must hold elections to appoint their employee representatives to a committee for prevention and protection at work. Companies with an average of 100 employees must also hold elections to appoint this representative to the works council.
The social election regulations will soon require employers to maintain a register of the temporary workers they employ. However, exemptions are possible.
Action point: If your company employs more than 100 people and you will therefore have to organize works council elections without discussion, it's best to have these minutes recorded at a works council meeting (no later than March 31, 2023). This will avoid the administrative hassle of maintaining the temporary agency worker register.
2. Not only employees, but also temporary workers count
The calculation of the thresholds of 50 and 100 is based on the number of employees (and equivalent persons) and temporary workers employed by a company.
For employees (and equivalent categories such as apprentices), this average employment is calculated based on the number of days they were employed by the company in the period from the fourth quarter of 2022 (October 1, 2022) to the third quarter of 2023 (September 30, 2023). For temporary agency workers, their average employment is calculated for the second quarter of 2023 (the period from April 1, 2023, to June 30, 2023). One category of temporary agency workers does not need to be taken into account for the application of the threshold. A temporary agency worker replacing a permanent employee whose employment contract is suspended is not included in the calculation. This is logical, because the employee whose employment contract is suspended remains included. If the temporary agency worker replacing him were also included, there would be double counting for the same position.
3. All employers are obliged to maintain an “appendix to the personnel register”
In principle, every employer is required to maintain an appendix to their personnel register (hereinafter referred to as the "temporary workers register") and to include their temporary workers in this register by the secondquarter of 2023. This obligation also applies to companies that are determined not to meet the 50-employee standard and are therefore not required to hold social elections.
The temporary agency worker register must list all temporary agency workers. It must meet specific requirements. It must be a paper, bound book in which each temporary agency worker employed is assigned a number according to a consecutive numbering system, in the chronological order of their assignment to the client. For each temporary agency worker, the following must be recorded:
– the registration number
– his weekly working hours.
It is recommended that this register also include an entry immediately if the temporary worker replaces an employee whose contract has been suspended. This will not be included later – when calculating the average number of temporary workers.
4. Exemption from the obligation to maintain the register of temporary workers
A company can be exempted from maintaining a temporary worker register. To do so, the company must obtain a unanimous statement from the works council (i.e., the full employer and employee representation within the works council) confirming 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
dirk.wijns@mploy.be– 0476 84 24 91
4 Jurisprudence – the presumption of discrimination
Liège Court of Appeal, January 10, 2023, unpublished.
The statement “does not meet the conditions” does not meet the requirement to communicate the specific reasons for the dismissal.
Dismissal on the grounds of pregnancy or incapacity to work resulting from pregnancy constitutes direct discrimination on the grounds of sex and health.
To invoke 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 proof is not provided, the claim for lump-sum compensation for discrimination is rejected.
The court does award compensation for manifestly unreasonable dismissal and estimates this at 7 weeks' salary.
1. Facts. Ms. D. has been employed as an account manager for an employer active in the tourism sector, BV S., since September 16, 2016. After a suspension of several months due to the Covid-19 pandemic, she resumed work in early 2020. On September 15, 2020, she was dismissed.
She claims she was dismissed because of her pregnancy, which would constitute direct discrimination based on gender and health. According to S., she was dismissed 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. Given the rules regarding the burden of proof, it is up to D. to demonstrate the existence of facts that suggest discrimination based on sex and/or health status. If she succeeds, it is up to S. to prove that there is no discrimination.
D. claimed to have sent a letter to S. about her pregnancy in August 2020, but failed to prove sending it, let alone receiving it. She had informed one of her colleagues about her pregnancy. However, this was not her superior. The court ruled that informing a colleague about a pregnancy is not the same as informing the employer.
The account manager further argued that she was just over four months pregnant at the time of her dismissal, so her pregnancy would have been visible anyway. The Court disagreed. According to the Court, an employee's morphology and clothing style certainly make it possible for an employer to be unable to determine with certainty pregnancy, especially not during the fourth month of pregnancy.
The court annuls the decision of the labor tribunal and declares the claim for a lump sum compensation of 6 months' wages for discrimination unfounded.
3. Manifestly unreasonable dismissal. Despite Ms. D.'s request, employer S. had not communicated the specific reasons for the dismissal. The Court considers the statement “ne remplit pas les conditions” insufficiently concrete.
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 will not have been unrelated to this.
The court agrees with the first judge's decision that the dismissal is manifestly unreasonable, but reduces the compensation to 7 weeks' salary.
The court's reasons are worth mentioning. The court considers that the requirement is that the dismissal "should have been decided by a normal and reasonable employer." This is not entirely (or not at all?) what collective bargaining agreement no. 109 stipulates. It refers to a dismissal "which would never have been decided by a normal and reasonable employer." In French: "which would never have been decided by a normal and reasonable employer" (Article 8). Incidentally, the commentary on this provision in the collective bargaining agreement refers to a marginal review. The judge may not assess the expediency of the employer's policy.
The court finds that S. demonstrates with a certain degree of credibility and based on documents that D.'s performance after the suspension due to Covid-19 was insufficient (2 points in June, July, and August 2020, while she achieved 25 points in October 2019). Moreover, S. also referred to the difficult economic situation resulting from the long lockdown. The court then notes that S. has not submitted any documents regarding the expected performance of D., nor regarding the results of the other employees, or more generally regarding the company's results for the period of June, July, and August 2020. Finally, S. had never formally or informally informed her employee D. of her insufficient results.
The court considers the dismissal manifestly unreasonable, a dismissal that would never have been decided upon by a normal and reasonable employer…
The court set the compensation at 7 weeks' wages because, although the reasons for dismissal given by the employer were not proven, they were also not "completely fantastic, especially considering the consideration of a worker with a low previous salary".
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