Newsletter 2025 – 08
1 Office news
Mploy welcomes Mr. Steve Tronckoe to its team. He has specialized in employment law for over 20 years and previously worked at Astrea Law and Altius.
in collaboration with Conneqtr, is organizing a webinar on Tuesday, November 25, 2025, about deploying foreign workers on construction sites starting January 1, 2026. Martijn Ronnen and Steven Renette be speaking for Mploy. Working in the construction sector? If you're interested, you can here .
2 Jurisprudence – sickness absence, monitoring and guaranteed wages
Antwerp Labor Court, Hasselt division, January 7, 2025
A breach of the availability obligation does not always lead to the loss of the guaranteed salary for the remaining period of illness.
An employee reports sick from August 24th to September 6th and submits a doctor's note. The work regulations include a provision stating that employees must be available for a medical examination between 1:00 PM and 5:00 PM during the first three days of incapacity for work.
The medical examiner dispatched by the employer arrived at the employee's home on August 24th at 4:55 p.m. He found a closed door and no one there.
The examining physician leaves a message and informs the employer.
The employee contacted the employer to say that she had an appointment with a physiotherapist for treatment of her pain at the time of the check-up. She claimed she had a valid excuse for not being present.
The employer sees this differently and refuses to pay the guaranteed wages for the prescribed period of incapacity for work.
1. The principle validity of an availability obligation
The Labor Court assessed the availability obligation stipulated in the work regulations against the statutory requirements of Article 31, Section 3, paragraph 2, of the Employment Contracts Act. The Court's decision states that the manner in which the availability obligation was introduced and implemented in practice is fully in accordance with the law.
2. A visit to the physiotherapist does not constitute a legal reason
According to the work regulations, the sick employee was required to be available at home during the prescribed time slot for a possible medical examination. Unless the employee has a legitimate reason, absence during this time slot can be considered a evasion of medical examination, resulting in the loss of guaranteed wages. Examples of legitimate reasons include an (unexpected) doctor's visit or hospitalization.
According to the Labor Court, a visit to a physiotherapist is not a legitimate reason. Such an appointment isn't made on the day itself, but is pre-arranged. Physiotherapy is provided on a doctor's prescription and after practical arrangements have been made with the physiotherapist.
The employee was absent without a legal reason at the time of the inspection.
3. The consequences for the right to guaranteed wages
An employer whose employee avoids a medical examination is not obligated to pay the guaranteed wages. They may deny the employee the guaranteed wages, but are not required to do so. Like any right, this right must be exercised in good faith. According to the Labor Court, this was not done here: withholding the guaranteed wages for the remaining period of incapacity for work is disproportionate to a one-time violation of the availability obligation, occurring five minutes before the end of the period. The court holds the employer accountable for not taking the initiative to arrange a second check-up after the missed check-up. In light of this, the Labor Court considers the withholding of the guaranteed wages for the remaining period disproportionate and unreasonable. Guaranteed wages are not due for the day of the missed check-up itself.
Steven Renette, lawyer-partner
steven.renette@mploy.be