Newsletter 2023 – 05

Mr. Steven Renette was appointed by Royal Decree of May 1, 2023 (Belgian Official Gazette, May 31, 2023) for a four-year term as a member of the Advisory Council on Social Criminal Law. The council's primary task is to conduct studies and provide advice on legal, socio-economic, and administrative issues related to the application of social criminal law. It does so both on its own initiative and at the request of the competent ministers.

In De Juristenkrant of May 11, 2023, a contribution by Mr. Steven Renette under the title “Can you prove anything with statistics (and that also in the employment court)?”.

“Back to the Claeys formula by mistake”, written by Mr. Ludo Vermeulen,  appeared in De Juristenkrant  on May 25

Mr. Rob Valkeneers published an article on Jubel.be titled “Le gouvernement des juges: regels onze rechters?”.

Arbh. Brussels, May 23, 2022

If stipulated in the work regulations, an employee who is frequently ill is obligated to undergo a medical examination on their own initiative each time they are absent. This collective arrangement makes an individual arrangement unnecessary. The arrangement may be limited to a group of employeesdetermined based on an objectiveand neutral criterion, such as the Bradford factor. Based on these considerations, the Brussels Labor Court rejected a claim for payment ofguaranteed wages. Such a system is not discriminatory based on health status.

The facts

A security company employing 5,000 workers in Belgium has (after extensive consultation with the works council) included a special provision for assessing employee incapacity for work in its work regulations. This stipulates, among other things, that incapacitated employees who are permitted to leave their home must spontaneously report to the medical examiner for an examination if their Bradford factor exceeds a certain level. Employees who exceed this standard will receive a registered letter from their employer requesting that they report to the medical examiner every time they report sick.

If the employee does not do this, he is not entitled to guaranteed wages.

In the case before the court, there was no dispute that employee AB was frequently absent due to illness during the period of one year (1 December 2017 – 30 November 2018) for periods between 1 and 14 days.

On January 24, 2019, he was asked by letter to report to the examining doctor in the event of any subsequent absence due to illness.

AB was absent from Friday, May 3, 2019. He provided his employer with a certificate from his doctor, who declared him unfit for work due to illness from May 3 to 7, 2019. However, he failed to report to the examining doctor. The employer then informed him that he would not receive guaranteed wages.

The union subsequently demanded the guaranteed wage and also requested that the procedure of automatic presentation to the examining doctor no longer be applied.

The decision of the labor court

The case ultimately ended up before the Labor Court. The court ruled that the employment contract and/or work regulations could validly stipulate that employees, or certain employees, must spontaneously report to the examining physician at the onset of their incapacity for work.

In this case, employees who exceeded a certain level on the Bradford scale had to report spontaneously to the examining doctor.

The request to report to the examining physician can be included collectively in the employment regulations, and this collective request can be limited to a group of employees based on objective and transparent criteria. The provision in the company's employment regulations does not constitute an increase in the employee's obligations as prohibited by Article 6 of the Employment Contracts Act.

The court then examines whether the employer was guilty of discrimination on the grounds of health status.

It finds that the additional obligation, namely the spontaneous presentation to the examining physician of employees selected according to the Bradford factor, constitutes less favorable treatment than that of other disabled employees. Without further explanation—although unfavorable treatment does not automatically give rise to a presumption of discrimination—the court finds that this establishes facts that could give rise to a presumption of discrimination, so that it is up to the employer to demonstrate that the difference in treatment based on health status is justified by a legitimate aim and that the means to achieve that aim are appropriate and necessary.

The employer provides this reasonable justification. Combating absenteeism due to illness is part of the company's comprehensive well-being policy, which aims to keep the company and its employees healthy. This is a legitimate goal. The court, in a detailed explanation, considers the means to achieve this goal, namely the obligation to spontaneously report to the examining physician, to be appropriate and proportionate. The court refers to the fact that short, frequent, and unforeseen periods of illness create more organizational problems and are also more burdensome for other employees who must unexpectedly step in, particularly in a security company. Furthermore, the court assumes that closer monitoring by the examining physician, combined with follow-up interviews by managers, is an appropriate measure to detect a possible link between the frequent absences and working conditions. Finally, the court notes that the obligations for the incapacitated employee were very limited.

The selective system of mandatory spontaneous presentation to the examining physician, based on the Bradford factor, is therefore not discriminatory and AB is not entitled to guaranteed wages.

Dirk Heylen, lawyer
dirk.heylen@mploy.be

Self-employed persons who became incapacitated for work were previously only entitled to sickness benefits from the fifteenth day of illness.

Since July 1, 2019, self-employed workers are entitled to benefits from the first day of illness, provided the period of incapacity lasts eight days or longer. In other words, if a self-employed worker is sick for five days, they are not entitled to benefits for those days. If they are sick for fifteen days, they are entitled to benefits from the first day (excluding Sundays).

It is important that the self-employed person submits a correct notification of their incapacity for work to their health insurance fund as soon as possible. The period for which reimbursement is received can only commence once the self-employed person has had the incapacity for work confirmed by a doctor and that doctor has completed the “certificate of incapacity for work”. A ‘regular sick note’ ​​is not sufficient. The self-employed person must submit this certificate to their health insurance fund within seven days of the day on which the doctor completed the certificate. The self-employed person may hand in the certificate to the health insurance fund against a receipt. They may also send it by post; the postmark then serves as proof of the date of dispatch. It is advisable to send the certificate by registered mail: in the event of a dispute, the self-employed person must provide proof of dispatch and the date thereof. Therefore, it is best not to deposit it in the health insurance fund's mailbox.

It is not possible to submit a "retroactive application": if a self-employed person is sick for three days before going to the doctor, the period for which they receive sickness benefits can only start from the fourth day, being the day on which the doctor completes the certificate of incapacity for work.

Tip 1: It is therefore advisable to consult a doctor immediately in the event of an accident or illness where, at first glance, there is a chance that the incapacity for work may last longer than 7 days, and to have the 'certificate of incapacity for work' completed and sent to the health insurance fund during the first doctor's visit.

Tip 2: This also applies to self-employed business owners. The fact that their business continues is not a problem.

(Source: Act of 22 May 2019 amending the Royal Decree of 20 July 1971 establishing a benefit insurance scheme and a maternity insurance scheme for the benefit of self-employed persons and cooperating spouses, in order to abolish the waiting period, Belgian Official Gazette 24 June 2019)