Newsletter 2025 - 02

2 Office news

The Flemish Human Rights Institute opened its doors two years ago. The institute will celebrate this anniversary on Friday, March 28th, at the Flemish Parliament with, among other things, a retrospective of its achievements. Mr. Steven Renette is one of the speakers and will share his perspectives on the initial rulings of the Dispute Resolution Chamber of the Flemish Human Rights Institute.

Mr. Ludo Vermeulen will address the topic "The powers of the social inspectorate in light of the fundamental rights of the employer. New developments."

3 Jurisprudence – language use in employment relationships

Court of Cassation, February 3, 2025, S.18.0020.N, www.juportal.be

The provisions of the Language Decree must be interpreted in such a way that the absolute nullity of an employment contract not drawn up in Dutch does not prevent the employee from relying on the provisions laid down therein and from basing his claim on them.

In short, the Language Decree stipulates that all social relations between employers and employees must be conducted in Dutch. Documents not drawn up in Dutch are absolutely null and void. "The annulment cannot be detrimental to the employee and does not affect the rights of third parties. The employer is liable for any damage caused by their invalid documents or actions to the detriment of the employee or third parties" (Article 10, paragraph 5).

The employer argued before the Court of Cassation that the absolute nullity also applies to the employee, and that the employee therefore retains no right to invoke the provisions of the invalid foreign-language document that are beneficial to him. The employee can, however, claim compensation from his employer for the damage he suffers as a result of the nullity, since the nullity must not cause him any disadvantage.

The Court of Cassation, which took nearly seven years to reach its judgment, does not follow this interpretation of the Language Decree. The employee can, however, invoke the provisions laid down in a (completely null and void) agreement in a different language.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be  

4 Judiciary – the social inspection and special investigation methods

Court of Cassation, December 18, 2024, P.24.0939.F, www.juportal.be

The strict regulation for the use of special investigative methods, such as systematic observation, applies to police services but not to social inspectors.

Article 47 sexies of the Code of Criminal Procedure regulates "observation" by police services. This concerns the systematic observation by a police officer, under the supervision of a judicial police officer, of one or more persons, their presence or behavior, or of certain behaviors, or of specific matters, places, or events. A systematic observation includes, among other things, an observation lasting more than five consecutive days or more than five non-consecutive days spread over a period of one month, and an observation using technical equipment.

Such observation may only be carried out after written authorisation has been given by the public prosecutor.

The Liège Court of Appeal acquitted an employer of several social security offenses because the social inspectorate had conducted systematic surveillance without such authorization. The Public Prosecutor's Office is appealing this acquittal in cassation.

The Court sets aside the judgment of the Court of Appeal.

The Court finds that those special investigative methods (BOM) were introduced to collect, record and process data and information for the purpose of prosecuting offenders on the basis of serious indications that criminal offences will be committed or have already been committed, regardless of whether they are already known or not.

The Court considers that social inspectors must comply with the provisions of Articles 18 and 19 of the Social Penal Code in their actions. They must exercise their powers to monitor compliance with the provisions of that code and other laws they oversee, such as the Anti-Discrimination Acts (Article 18). In doing so, they must ensure that the resources they employ are appropriate and necessary for monitoring purposes (Article 19).

It is under these specific conditions that social inspectors must exercise the powers conferred on them by the Social Penal Code, according to the Court.

It follows that observation by the social inspectorate, regardless of its frequency, does not fall under the rules of observation contained in the Code of Criminal Procedure.

Further background information can be found in the opinion of First Advocate General Nolet de Brauwere, also published on Juportal.be. He concludes that the legislation on special investigative methods (Article 47sexies of the Code of Criminal Procedure) only applies to police services. "It is not a concern for foreign missions to this end that involve relevant areas of the administrative police or exercises by the services that do not possess judicial competence." His conclusion indicates that the BOM (Bom) regulations do apply to social inspectors who hold the position of judicial police officer.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be  

5 Jurisprudence – compensation for the employer

Hasselt Labor Court, April 18, 2024

Taking “revenge” online as a (former) employee does not go unpunished.

The employment contract between the operator of an indoor playground and an employee comes under pressure when the latter, for various reasons, fails to show up for work on time and consistently informs the employer of this late.

The employer's patience wears thin, and after another period of absence, he asks the employee to return the company car. She refuses, and the employer retrieves the car himself. He discovers that the car shows signs of damage, and that the key and charging cable are missing. A heated WhatsApp exchange ensues between the employer and the employee, with the latter stating that she will take "revenge" for the car's return. Around the same time, her partner posts the following review on Google:

“Real dirty people… they just throw the halal meat in with the pork hamburgers… they fry them together and give them to people who are not allowed to eat them… if you speak to them about it you get another dirty mouth from the owner (a certain X). That woman has no shame in anything… I have never met such dirty people and this in a children’s playground… really a disgrace. bir daha asla buraya gelmeyecezig !!! (free translation from Turkish: “We will never come here again”)”

These reports further escalated tensions, and the case ultimately ended up before the labor court. The employer sought compensation from the now-former employee for the commercial damage he suffered as a result of the negative review. Meanwhile, the employee had also made her presence felt and posted messages on social media ("I'm a former employee of theirs... What kind of people are these? Making their money in a dirty way").

The labor court agrees with the employer that these messages have an unavoidable negative impact, given the location and clientele of the indoor playground. Because the exact extent of the damage is difficult to estimate, the court sets the damages equitably ( ex aequo et bono) at €500.

No compensation was awarded for the former employee's creation of a WhatsApp group with former colleagues in which she urged them to always check their payslips for any errors.

Steven Renette, attorney-partner
steven.renette@mploy.be