Newsletter 2025 - 01

2 Legislation – overtime and recovery hours

As we know, the recovery hours measure (voluntary overtime that can be paid gross for net and does not give rise to an overtime surcharge) will end (for the time being) on ​​June 30, 2025. The other voluntary overtime measure (with a 50% surcharge to be paid immediately and no compensatory rest) is of indefinite duration.

This means that if employers regularly have employees work such hours, they should first have them take the 120 recovery hours this year; the other 120 voluntary overtime hours can then be taken after June 30th.

Important to know: every employee must submit a new “application” to their employer every 6 months.

It is quite possible that, if this government eventually comes into power, it will at least extend the recovery hours system.

Dirk Wijns, senior consultant
dirk.wijns@mploy.be

3 Jurisprudence – discrimination: the reasonable justification

Arbh. Brussels September 10, 2024, www.unia.be

An employer discriminates on the grounds of health status if he dismisses a manager who is absent for consecutive short periods due to illness for a considerable period of time.

SP has been Marketing Manager Data & After Sales at his employer BM since 2017 , with approximately 20 employees under him. He reported to the General Manager. From 2019 onwards, he was incapacitated for work for short periods on several occasions. The last period of incapacity lasted more than 3 months and was certified by the general practitioner for short periods of a few weeks each time. After those 3 months of absence, BM proceeded to dismiss him the moment it received a new sick leave certificate for five weeks. It abolished SP's position and redistributed his duties. BM later assigned certain of these tasks – in the course of 2020 – to a newly hired employee.

The employee demands that the court.

• compensation for discrimination on the grounds of disability or health status;
• overtime wages.

Discrimination

The court finds that there is no evidence of a disability. A summary certificate from the general practitioner – issued after the dismissal – that S. suffered from burnout is insufficient. The successive certificates, each for short periods, also do not point to a long-term disability. There is, however, a presumption of discrimination based on health status. The court derives this presumption from, among other things, the fact that the dismissal took place on the day that SP communicated yet another extension of his incapacity for work. Consequently, the burden of proving that he did not discriminate shifted to the employer. The court finds that a dismissal due to the disorganization of work resulting from the absence or with the intention of ensuring continuity of work serves a legitimate purpose. However, the dismissal must also be appropriate and necessary to achieve that purpose.

“Regarding the appropriate nature, one (the employer) must demonstrate that the dismissal actually contributes to improving the functioning of the enterprise. An employee’s absence due to illness entails organizational difficulties or efforts for an employer. The incapacity for work forces the company to provide a replacement or to redistribute the work among the employees present. These difficulties are not in themselves sufficient for the dismissal of the employee concerned to be an appropriate measure.” That is a somewhat strange line of reasoning, since, regarding the appropriate nature, the judge should ask himself whether the dismissal, which was part of the abolition of the position and the redistribution of the manager’s duties, was of a nature “pertinent” to achieving the objective accepted as legitimate, namely guaranteeing the continuity of work. The answer to that seems to be positive, however. At the time of the dismissal, the return of the manager, who held a supervisory position, was delayed by yet another five weeks after a three-month absence, compounded by uncertainty regarding his return after January 5, 2020. BM's intervention, namely the elimination of the position and the redistribution of tasks, seems entirely appropriate to remedy the work disorganization in that situation and to guarantee business continuity. After all, one cannot keep improvising regarding the management of a team of 20 employees and introducing temporary solutions for just a few weeks at a time.

The court subsequently rules that the dismissal was also not necessary to achieve the legitimate objective. It examines whether “BM considered or implemented less far-reaching alternatives to the dismissal before proceeding with the dismissal. BM did not do so. While it claims that no other position was available for Mr. S., it does not substantiate this claim in any way.”

The court goes very far here. In the HR-Rail of February 10, 2022, the Court of Justice ruled for the first time that the reasonable accommodation obligation requires an employer to offer a person with a disability an alternative job, and then only under strict conditions (e.g., a vacancy). In the judgment under discussion, the Court of Appeal assumes a similar obligation for an employee with ordinary health problems, albeit within the context of the proportionality test.

It seems very likely that in the interpretation of the necessity requirement as applied by the Labour Court, no reasonable justification is possible for a dismissal such as in this case.

Overtime

As regards overtime, the court notes

• that the manager is not covered by the working hours regulations of the Labor Act;
• that in Belgium there is no obligation for employers to register working hours.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be  

4 Judiciary – A drug dog and weapons…

Chamber of Appeal Subsidized Free Education, GVO/2024/2/…/17 April 2024

A teacher who was temporarily appointed for a specific period (TABD) was dismissed for urgent reasons.

A local police drug dog had flagged the teacher's backpack during a drug prevention visit to the school.

However, the police found no drugs, nor was the teacher in question subjected to a drug test.

The backpack did contain two prohibited weapons, specifically a flick knife and a bank card knife. Police issued two reports regarding this. The teacher paid €400 as part of an out-of-court settlement.

During a performance review a few months earlier, the teacher smelled marijuana and admitted to using drugs outside of school. The school noted this in the performance report.

The teacher initiated proceedings before the Appeals Board to challenge the dismissal for urgent reasons.

The Appeals Board found that the dismissal had been given on time, specifically within three working days of the last incident. This applies regardless of whether older shortcomings were taken into account, such as the performance report from several months ago.

The Appeals Board did identify problems with regard to the substantive grounds for dismissal:

Drugs

• Spreading a drug odor during a performance review is not a serious deficiency. There was no evidence that the teacher used drugs at school, nor that this would have impacted school operations.
• It's insufficient that the drug-detection dog identified the teacher's backpack. After all, no drugs were found, so there's no evidence of illegal drug use or possession, nor of drugs being brought into the school.

Weapons

• The official reports and photographs of the knives were not included in the case file. Consequently, the specifications of the knives were unclear. The Appeals Board assumed they were "modest" weapons.
• Before the police check, no one inside the school found knives on the teacher.
• The teacher is not known as someone with an aggressive personality.
• There has never been any incident, let alone with knives.

The Appeals Board, however, found that the teacher should have been more careful not to bring weapons to school. The Appeals Board considered bringing these weapons a "deficiency," but not the "serious deficiency" required for dismissal for urgent reasons.

The Board of Appeal therefore annulled the dismissal for urgent reasons.

Hans Van Rompaey, Partner Attorney
hans.vanrompaey@mploy.be