Newsletter 2025 - 06

1 Office news

2 Jurisprudence – Disciplinary procedures are also not exempt from the Private Investigation Act

On 16 December 2024, the Act of 18 May 2024 regulating private investigation (hereinafter: 'Private Investigation Act') entered into force.

Very briefly summarized, the purpose of that law can be described as follows:

• the revision of the previous law on private detectives, which was no longer adapted to new developments and technologies in the field of private investigation;
• eliminating an imbalance between private and public investigative authorities;
• the need to align private investigation regulations with GDPR regulations.

At first glance, these objectives do not seem immediately relevant for (public and private) employers.

However, the Private Investigation Act is indeed a new layer of regulation on top of the numerous rules Belgian employers must already comply with. Its scope is defined very broadly: "private investigation activities" are considered to be activities that cumulatively meet the following conditions:

• the activity is carried out by a natural person;
• the activity is carried out on behalf of a client;
• the activity consists of collecting intelligence obtained through the processing of information about natural or legal persons or about the circumstances of acts committed by them;
• The objective of the activity is to provide the collected intelligence to the client in order to safeguard the client's interests in the context of an actual or potential conflict, or to trace missing persons or lost or stolen goods.

In the context of employment law, this often refers to an investigation by a HR employee into facts that could justify dismissal for urgent reasons.

However, there are still conceivable cases in which the obligations of the Private Investigation Act apply to work-related matters. For example, at least certain disciplinary procedures (whether or not with a view to the disciplinary sanction of dismissal) may fall under the Private Investigation Act. An example is provided below.

A local authority wishes to conduct a disciplinary investigation into a statutory civil servant. According to the Local Government Decree, a disciplinary investigator must be appointed. The disciplinary investigator is not the one who will impose any subsequent disciplinary sanctions (that authority, after all, belongs to the government employer). This disciplinary investigator will gather information on behalf of the local authority, with the objective of sharing the collected information with the local authority to safeguard its interests in an actual conflict.

In the following example, it seems a little less obvious to conclude that the Private Investigation Act applies.

A school board of a subsidized private educational institution wishes to conduct a disciplinary investigation into a permanent staff member. Typically, the governing body of the non-profit organization that forms the school board will appoint a disciplinary committee composed of members of the non-profit organization. This disciplinary committee is also authorized to impose the final disciplinary sanction. The information gathered by the disciplinary committee is therefore not intended to inform the (other members of the) non-profit organization, but rather to enable the disciplinary committee/investigator to make its own decision.

On the other hand, the disciplinary committee acts in the name and on behalf of the non-profit organization, and the latter will use the information gathered from the disciplinary file to defend its interests in any subsequent appeals proceedings. This, in turn, argues in favor of the applicability of the Private Investigation Act.

In this case, an impractical solution, which also goes against current practice, to avoid the obligations of the Private Investigation Act seems to be to have the disciplinary proceedings conducted by the non-profit organization itself, without delegation of authority.

Of course, it must always be assessed on a case-by-case basis whether the law in question applies or not.

The Private Investigation Act stipulates several highly formal obligations that we will not discuss here. Some obligations are even prescribed under penalty of nullity. Failure to comply with the Private Investigation Act in disciplinary proceedings conducted since December 16, 2024, therefore threatens to undermine an entire disciplinary or dismissal procedure – and the associated work. Ultimately, the judge will assess which evidence will be considered. And that's not even mentioning the risk of an administrative fine, which can amount to up to €25,000.

Legal assistance in disciplinary procedures is therefore all the more important.

Hans Van Rompaey, lawyer
hans.vanrompaey@mploy.be  

3 Jurisprudence – The obligation to hear is not an empty concept

Antwerp Labor Court, Turnhout Division, February 10, 2025

The court awards a lump sum compensation of 5,000 euros for violation of the right to be heard by the government employer.

When a government employer dismisses an employee without first hearing them, this not only violates the right to be heard, but can also lead to compensation for manifestly unfair dismissal.

In a judgment dated February 10, 2025, the Antwerp Labor Court, Turnhout Division, considered the dismissal for urgent cause of a government contractor. He was dismissed after an incident in which he shouted loudly during a conversation with his supervisor and, according to the employer, behaved aggressively.

The court found the shouting proven, but ruled that this behavior—although inappropriate—was insufficient to justify dismissal for urgent reasons. The context was decisive: the incident occurred in a work environment that had been under severe pressure for some time, with structural problems such as staff shortages and a high caseload, as revealed by internal communications.

Furthermore, the court found that the government had not heard the employee before dismissing him, which constituted a violation of the fundamental right to be heard. An invitation for a meeting was sent, but that meeting was solely intended to communicate the decision already taken. The employee was not given the opportunity to present his version of events. According to the court, it was nevertheless necessary to hear the perspectives of all parties involved—including the employee's—to arrive at a balanced assessment. For breach of the right to be heard, the court awarded damages, equitably estimated at €5,000.

Although the court ruled that the government contractor made a mistake by reacting emotionally and shouting, it nevertheless decided on a manifestly unfair dismissal. A normal and reasonable employer would not have dismissed the employee under these circumstances. The court took the employee's long service into account. According to the court, it would have been more appropriate to initiate a discussion and possibly initiate a process for improvement. Therefore, the court also considered the failure to hear the employee when assessing the manifestly unfairness of the dismissal. It awarded damages equal to three weeks' salary.

⚖️ Footnote: The Law of 13 March 2024 now provides for a fixed compensation of two weeks' salary for disregard of the duty to hear parties in the dismissal of a public contractor. Since the dismissal in this case predates the entry into force of this law, the court still applied an assessment of damages ex aequo et bono .

Roy Melis, lawyer
roy.melis@mploy.be  

4 Jurisprudence – Apparently unfair dismissal: jurisprudence and good HR policy at odds

1. Ask for previous notices of default

When it comes to a manifestly unfair dismissal, we often find that courts inquire about the existence of prior notices of default or warnings. If an employer cannot provide formal notices of default or written warnings, the court is more likely to assume that the dismissal was manifestly unfair.

This is at odds with the principles of sound and modern HR policy. An employer cannot be expected to issue a formal reprimand for every instance of misconduct or performance that could be improved.

A good HR policy ensures that employees can work in a pleasant atmosphere and feel valued, resulting in motivation and engagement. Employers who invest in constructive communication and coaching choose to address mistakes in a people-focused way – through feedback sessions, adjustments, and support.

Written reminders are often inappropriate. On the contrary, they can be counterproductive. Sending a written warning every time an employee makes a mistake or should have done better quickly undermines engagement and motivation.

Experience shows that employees who receive several registered letters within a short period of time with comments about their performance feel targeted or even bullied. This leads to tension or even incapacity for work.

It is therefore understandable that employers try to avoid such escalations through an informal approach and dialogue.

All of this aligns with what is stated in the National Labor Council's own report on collective labor agreement 109: "The Council was guided by the firm belief that explanation and dialogue can prevent misunderstandings, reduce tensions, and mitigate conflicts that can arise between the employer and employee in the context of dismissal. A sound HR policy is based on ongoing dialogue (informal and/or formal) between the employer and the employee throughout a career."

When assessing the manifestly unfair dismissal, the court cannot, after all, require the employer to do the exact opposite: to demonstrate that the employee's past is not so spotless and that his conduct or suitability was indeed challenged, the court must be able to submit reminders and notices of default…

One cannot simultaneously expect an employer to pursue a motivating and humane personnel policy with attention to the well-being of its employees, while at the same time issuing a formal warning for everything that can be criticised regarding the behaviour and suitability of the employee. The commentary on Article 8 of Collective Labour Agreement 109 clearly indicates that it is also impossible for the judge to have sufficient knowledge of the employer's HR policy to assess it: that commentary speaks of the "practical impossibility of monitoring the employer's policy more than marginally."

2 To what extent may the court judge the employer's HR policy and HR policy decisions?

There's another, more deeply rooted problem behind asking about the existence of previous notices of default. It demonstrates that the courts actively assess the employer's HR policy, just as they are permitted to do in cases of dismissal for urgent reasons.

And that, however, is precisely what the legislator never intended. This is at odds with collective labor agreement 109. The commentary on Article 8 speaks volumes:

The court's review "is therefore a marginal review. Only the manifest unreasonableness of the dismissal may be assessed, not the expediency of the employer's policy (understood as the employer's choice from the various reasonable policy options available). The addition of the word "manifestly" to the term "unreasonable" is intended to emphasize the employer's discretion and the review at the margin. The latter is also motivated by the practical impossibility of monitoring the employer's policy more than marginally."

In the case of dismissal for urgent reasons, the legislator itself has expressly assigned the judge a value assessment: in particular, the alleged shortcoming must be so serious that cooperation with the employee has become immediately and definitively impossible.

The judge must indeed decide whether the employee's mistake is serious enough.

This specific value judgement does not exist in the case of manifestly unreasonable dismissal, on the contrary.

Manifestly unreasonable dismissal has nothing to do with dismissal for urgent reasons, but in practice it is often regarded as a kind of "light dismissal for urgent reasons": in the case of urgent reasons, very serious errors must be established, and in order not to be manifestly unreasonable, more or less serious errors must also be demonstrated in the dismissal that led to the dismissal, and the judge then decides whether he/she considers those errors to be serious enough to actually lead to dismissal.

The commentary quoted above regarding Article 8 of Collective Labour Agreement 109 itself states in no uncertain terms that the judge may not substitute his own judgment for that of the employer to determine whether he considers the employee's dismissal reasonable. The value judgment expressly granted to the judge regarding the urgent cause ("is the shortcoming sufficiently serious") is expressly not applied to the assessment of the employee's fault: the addition of "manifestly" to "unreasonable dismissal" makes it clear that the judge may not make a value judgment per se .

The fact that the judge might find dismissal after a long period of service to be quite severe for the employee, the fact that they might find the employer to be very strict with an employee, the fact that they might find the employer could have made other choices, such as applying a sanction from the employment regulations, or that the employer should have given the employee another chance and should have consulted with the employee again: all of this is irrelevant. The judge may not judge whether the employer might have been better off choosing an option other than dismissal, cf. the commentary on Article 8 of the collective bargaining agreement: "The expediency of the employer's policy (to be understood as their choice from the various reasonable policy alternatives available to them) may not be assessed."

The judge also cannot know what informal conversations have taken place between the employer and employee. Partly for that reason, the commentary under Article 8 of Collective Labor Agreement 109 states that it is "practically impossible for the judge to exercise more than a marginal review of the employer's policy."

The conclusion is that the judge may not rule on the severity or desirability of the dismissal. This, as the commentary under Article 8 of Collective Bargaining Agreement 109 emphasizes, falls entirely within the employer's discretion. In other words, the judge may not rule on whether, in their opinion, the workplace problems could have been resolved in another way, or whether the employer should have taken other measures before dismissing the employee. This is a policy decision made by the employer, which, according to the collective bargaining agreement, the judge is not permitted to rule on.

If the judge finds that the employee made a mistake that led to the dismissal, he cannot rule that the dismissal was manifestly unreasonable.

3 Regarding the burden of proof regarding previous notices of default

Returning to the courts' request to submit evidence of previous notices of default: this also contradicts the burden of proof provided by the legislator. The requirement that the employer be able to provide evidence of previous notices of default essentially shifts the burden of proof onto the employer that the dismissal was not manifestly unreasonable. This was correct under the old evidentiary rules in Article 63 of the WAO concerning arbitrary dismissal, but the legislator explicitly abandoned this burden of proof in Collective Labor Agreement 109.

Article 63 WAO stipulated:

“For the purposes of this Article, arbitrary dismissal means the dismissal of a worker engaged for an indefinite period for reasons unrelated to the worker’s suitability or conduct or not based on the necessities of the operation of the undertaking, institution or service.

In case of dispute, it is up to the employer to provide proof of the reasons given for the dismissal.” (my emphasis)

The legislator – NAR collective labour agreement 109 was declared generally binding – has explicitly abandoned that distribution of the burden of proof and has opted for a completely different, new arrangement. That new arrangement is compelling. It is not because one believes that this distribution of the burden of proof might be unfair and because one considers it logical for the employer to demonstrate that he did not act unreasonably with the dismissal that the judge must discard the legislator’s distribution of the burden of proof. The principle of the separation of powers implies that the legislator drafts the regulations, and that the judge reviews them against those regulations. The adage “dura lex, sed lex” is also an application of this: the judge may not disregard the provisions of a law even for reasons of leniency or fairness. The same applies to the burden of proof in the case of a manifestly unreasonable dismissal.

Dirk Heylen, lawyer
dirk.heylen@mploy.be

Nette Huysmans, lawyer
nette.huysmans@mploy.be