Newsletter 2026 – 02
March 4, 2026
1 Office news
At the invitation of the VUB will give Ludo Vermeulen an expert lecture in Brussels on March 23, 2026, on “Fundamental rights of the employer (and employee) and the social inspectorate”.
On March 25, 2026, Mploy is organizing an expert panel webinar together with Conneqtr : “2026 on the construction site: smooth, safe, and inspection-ready with a focus on the Flemish Due Diligence Duty.” Mr. Steven Renette and Martijn Ronnen are the experts on duty.
2 Legislation – Exclusivity clauses in employment contracts: unexpected and undesirable side effects
- What is this about?
Employment contracts regularly include clauses such as the following:“The Employee undertakes to dedicate all his working hours and professional skills to the performance of his duties. He is prohibited from holding any position or employment, whether as an employee or as a self-employed person, regardless of whether it is remunerated, without the prior written consent of the company, and this for the entire duration of this agreement.”Such stipulations are referred to as exclusivity clauses. - Validity
There was a dispute about the validity of such clauses. The Transparent and Predictable Employment Conditions Act, dated October 7, 2022, aimed to address these disputes – in implementation of European law. Article 20 of that Act stipulates:“The employer may not prohibit his employee from working outside his work schedule for one or more other employers or subject him to disadvantageous treatment for that reason, unless this is permitted by law.” This provision transposes Article 9 of the EU Directive of 20 June 2019, which states:“1. Member States shall ensure that employers do not prohibit workers from working for other employers, outside the hours of that employer's work, and that employers do not subject workers to any disadvantageous treatment in doing so.2. Member States may lay down conditions for the use of incompatibility restrictions by employers for objective reasons, such as health and safety, the protection of business confidentiality, the integrity of public services or the avoidance of conflicts of interest.”The Directive also requires Member States to adopt the necessary rules to protect employees from adverse consequences or dismissal when they report breaches of the law. Employees thus have, in principle, the right to work for several employers simultaneously.However, the employee is not completely free to work for any other employer: of course, the employee may not engage in competitive activities or acts of unfair competition, and in that second job he may not use trade secrets or secrets learned in the performance of the first job.
- And what about a reporting obligation?
The law does not prevent a clause in the employment contract stating that the employee must report additional activities to the employer. - Protection against adverse treatment or consequences
Article 31 of the Act contains the following rules: When an employee files a complaint against their employer for a violation of the rights they derive from the Directive and the Act, the employer may not take any adverse action against that employee or their representatives in the undertaking, except for reasons unrelated to the complaint. (…) A complaint is:- a reasoned complaint lodged by the employee with the undertaking or service that employs him;
- a complaint by the employee to the competent inspection services;
- a legal action brought by the employee.
If the adverse measure is contrary to the prohibition, the employer must pay compensation equal to either a lump sum compensation of six months' gross salary or the actual damage suffered.
Where the employer takes an adverse measure against the employee concerned or his representatives in the undertaking within twelve months of the complaint being lodged, the burden of proving that the adverse measure was taken for reasons unrelated to the complaint shall lie with the employer against whom the complaint was lodged.
- Protection against dismissal
“Except for reasons unrelated to the exercise of the rights deriving from this Act, an employer may not dismiss an employee who exercises these rights, nor may he make any preparations for such dismissal. At the request of the employee, the employer shall notify him in writing of the reasons for the dismissal. The employer must prove that the dismissal is unrelated to the exercise of the rights deriving from this Act.
If the reason invoked to substantiate the dismissal does not comply with the provisions of the first paragraph or in the absence of a reason, the employer shall pay the employee a lump-sum compensation equal to the gross salary for six months, without prejudice to the compensation due to the employee in the event of termination of the employment contract.
This compensation may not be received together with other compensation determined within the framework of a special protection procedure against dismissal.” - Penal sanctions
The aforementioned Article 20 is found in Chapter III of the Act. Article 33 of the Act stipulates that infringements of the provisions of Chapter III and its implementing decrees shall be investigated, established, and punished in accordance with the Social Penal Code. Article 174/1 of the Social Penal Code provides for a level 2 sanction for an employer who prohibits his employee from working for one or more other employers outside his work schedule, except in cases provided for by law, or subjects him to adverse treatment for that reason. - Questions – concerns
- When is the employer liable to punishment?
Is it sufficient that a prohibition clause is included in the employment contract or work regulations, or must it be a matter of the employer actually invoking and enforcing that prohibition clause in a specific situation?It seems to me that the mere existence of a prohibition is sufficient to conclude an infringement. Article 174/1 SSW stipulates that the prohibition is punishable. - Does the ban also apply to independent secondary activities?
Unfortunately, the new law does not address independent secondary activities.The penal provision of Article 174/1 of the Social Security Act must be interpreted restrictively. The prohibition of an independent secondary activity is not punishable.Civil sanctions (and dismissal protection) do not apply when the ban is limited to a self-employed activity.Can we conclude that an employer may validly prohibit a self-employed activity?Or should we conclude that a ban is invalid and the employee may ignore it, but that the employer who nevertheless 'applies' it is not punishable and, if he decides to dismiss, does not risk additional damages?
- When is the employer liable to punishment?
Dirk Heylen, lawyer
dirk.heylen@mploy.be
3 Jurisprudence – a failed reintegration request
Antwerp Labor Court, Tongeren-Borgloon Division, November 17, 2025
The request for reinstatement of a dismissed employee representative must be carefully submitted by the national interprofessional union. Otherwise, there is no valid request, nor is that employee entitled to the "variable" protection allowance. The claim for compensation for discrimination based on union affiliation will also be rejected.
- The facts and claims
A non-profit organisation has a long-running conflict with an employee X. who is a member of the works council and the prevention and protection committee. After numerous attempts at remediation do not lead to the result desired by the non-profit organisation, the non-profit organisation summarily dismisses Mrs. X. on 23 October 2023 and pays the “fixed protection compensation” in application of Article 16 of the law of 19 March 1991 containing special dismissal arrangements for employee representatives in works councils and committees.On 17 November 2023, the secretary of the white-collar union to which X. was affiliated sent a registered letter to the non-profit organisation demanding X.'s reintegration. The non-profit organisation did not comply with that request. X. then went to court and claimed an additional protection award of 23,948.93 euros. In addition, she claimed compensation of 18,780.48 euros, being six months' salary, for discrimination on the grounds of trade union beliefs. - Claim for second part of protection compensation
In addition to the fixed compensation, which depends on seniority and becomes immediately payable upon dismissal, a protected employee is entitled to "the salary for the remaining portion of the term until the end of the term of office of the members representing the staff in the elections for which they were a candidate." This right arises only "when the employee or the organization that nominated their candidacy has requested reinstatement and the employer has not accepted it within thirty days of the date on which the request was sent to them by registered mail.".On November 17, 2023, the secretary of the white-collar union requested the reintegration of X. The non-profit organization argued that this request did not meet the legal requirements. The white-collar union is not the “organization that submitted its candidacy.” Indeed, only the three national unions ACV, ABVV, and ACLVB can nominate candidates for the social elections. (I will not consider the executives for the moment.)X. relied on the general power of attorney that the president of the national trade union had given to the secretary of the white-collar union in 2019. In it, he gave the latter, among other things, power to submit candidate lists but also to "request reintegration upon termination of the employment contract of employees nominated as candidates".The court leaves open whether the national union can authorize its affiliated white-collar union to submit a reintegration request. This request was made illegally for other reasons.- X. does not demonstrate that the request came from the national union, as required by the 1991 law. The court infers from the wording of the reintegration request that the request came from the white-collar union and was not made on behalf of and at the behest of the national union.
- The national trade union could only take the decision to apply for reintegration for X after the dismissal. The authorisation to the white-collar trade union must therefore necessarily date from after the termination of the employment contract. After all, general prior authorisation amounts to the national interprofessional trade union entrusting the decision to submit an application for a reintegration allowance to a trade union, which is contrary to the wording of the 1991 law, which is a matter of public policy and must therefore be interpreted strictly.
Since no valid request for reintegration was made, the claim for the second “variable” part of the protection compensation is unfounded. - Discrimination
After thorough investigation, the court establishes that the non-profit organization decided to dismiss X. due to X.’s “communication style” and the failure of attempts to remedy that style through corrective measures and job adjustments. X. did not present any facts suggesting discrimination. Her claim for damages due to discrimination is therefore likewise rejected.
Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be
ludo.vermeulen@mploy.be