Newsletter 2026 – 04
1 Office news
We are proud to announce that Mr. Yves Thiery joins Mploy as a partner.
Yves combines extensive academic expertise – he obtained his PhD from KU Leuven in 2010 with a dissertation on discrimination in insurance – with years of experience at the bar dealing with complex discrimination and insurance issues, and as a lecturer at KU Leuven and UAntwerp.
What truly sets him apart is his insider perspective: as a former HR & Risk Manager, he knows better than anyone how legal choices impact the workplace and within organizations.
For several years, Yves has put his unique combination at the service of Mploy, where, as a lawyer, he focuses particularly on discrimination disputes in employment relationships. His approach is both analytically sharp and distinctly pragmatic, which Mploy's clients greatly appreciate.
With Yves, we not only strengthen our expertise but also our ambition to continue growing as a niche firm, not only in breadth but also in depth.
2 Case Law – on a pregnant midwife and the prima facie evidence
Court of Cassation 2 March 2026, S.24.0027.N, www.juportal.be
Anyone who claims to be a victim of discrimination must prove facts that suggest discrimination.
Naturally, the facts presented to the judge are then very important. MS is a midwife. Her contacts with the Kraamvogel (hereinafter K.) proceeded as follows.
- April 6, 2021: unsolicited application; De Kraamvogel replies by email that there are no vacancies;
- May 12, 2021: K. asks MS by email whether she is still interested, as a vacancy for a part-time position might become available;
- May 12, 2021: MS announces that it is still interested;
- May 26, 2021: introductory meeting
- May 29, 2021: K. writes in an email to MS: “And the question you already asked yourself in this email, you will have to answer this weekend: in what way can you give 100% to yourself, possibly 2 part-time jobs, a master’s degree, and a (future) family.”
- June 11, 2021: phone call: MS announces that she is pregnant;
- June 11, 2021: MS hopes in an email that her early pregnancy would not be a spoilsport;
- June 17, 2021: K. informs MS that she is not being rejected for the position;
- Late June 2021: K. publishes an open vacancy for the position of midwife;
- July 22, 2021: MS confirms in an email that the employer had said during contact prior to June 11, 2021, regarding a possible pregnancy: “If you were pregnant tomorrow, so to speak, this is no problem. We are De Kraamvogel; it would be terrible if we did have a problem with this.”
- July 23, 2021: MS applies again;
- August 19, 2021: the IGVM sends a registered letter to K. stating that the non-hiring of MS due to her pregnancy constituted prohibited discrimination;
- September 2, 2021: K. sends an email to MS: K. has retained her candidacy and invites her for an online interview;
- September 6, 2021: MS announces that it is withdrawing from further participation in the selection procedure.
MS, supported therein as appears from the facts by the Institute for the Equality of Women and Men, claimed before the President of the Labour Court, inter alia, that it be established that De Kraamvogel had committed direct discrimination on the grounds of sex, including pregnancy, childbirth, motherhood, and the desire to have children.
The president dismissed those claims. The Antwerp Labour Court declared the appeal against that judgment unfounded. MS and the IGVM subsequently lodged an appeal in cassation.
Their main argument was that the law stipulates that the alleged victim only needs to prove facts that suggest discrimination . In , its ruling a quo the Labour Court repeatedly ruled that they had not proven any facts suggesting . discrimination MS and the IGVM argued that the Court thereby raised the applicable standard of proof and violated the Gender Equality Act.
The ruling of the Court of Cassation is nevertheless somewhat surprising. It first cites the statutory provision regarding the rules of evidence, in which there is unequivocal reference to “facts that may give rise to a presumption of the existence of discrimination on the grounds of sex”. Subsequently, the Court considers:
It follows from this that the alleged victim, the Institute, or the interest group must present concrete facts from which a presumption of discrimination emerges, so that the burden of proof that there is no discrimination falls on the defendant.
The part, which assumes that for the shifting of the burden of proof it is not required that the alleged victim adduce facts suggesting discrimination, but that it suffices that these facts *could* suggest discrimination, fails in law
We must therefore read “cause to suspect” in the three discrimination laws where it says “could cause to suspect”.
The Directives forming the basis of Belgian legislation use the term “kunnen doen vermoeden” in Dutch. In English, this is “facts from which it may be presumed…” and in French “des faits qui permettent de présumer l'existence d'une discrimination”. In the recitals annexed to, for example, Directive 2000/78, reference is made to “manifest discrimination” (rec. 31). In English: “prima facie case of discrimination”, in French: “une présomption de discrimination”.
Was the Court of Cassation inspired by that?
Another excursion into the case law of the Constitutional Court. In the appeal in cassation, MS and the IGVM referred to a judgment of the Constitutional Court dated 10 July 2019. In that judgment, the Court held that it suffices to “add facts that may give rise to a presumption of the existence of such discrimination”. In the judgment of 11 March 2009, in which the Court ruled on a claim for annulment of the burden of proof rules of Article 28 of the General Anti-Discrimination Act, it held “…that there can only be a reversal of the burden of proof after the victim has proven facts that give rise to a presumption of the existence of discrimination”.
ludo.vermeulen@mploy.be
3 Case Law – no compensation payable by employer for employee burnout
Antwerp Labour Court, Tongeren-Borgloon division, March 10, 2026 (AR 25/631/A), not published
An employee became long-term incapacitated due to burnout. According to her, the cause lay with the employer:
- Structural poor working conditions: according to the employee, there was, among other things, a chronic staff shortage, and she was repeatedly assigned to replace sick colleagues without any form of financial compensation. Moreover, the workload was allegedly high.
- excessive psychosocial pressure and a lack of respect: she was assigned tasks for which she was not authorized (e.g., acting as the point of contact for staff in practice). Nor did she receive specific compensation or a job title for this.
She further criticized an alleged lack of support from the employer after she had reported the burnout.
Before the Labour Court, she claimed damages of €12,426.05 (provisionally estimated), composed as follows:
- 9,551.05 euros for alleged loss of wages due to incapacity for work;
- 375 euros as a partial contribution towards psychological assistance, particularly to the extent that the health insurance fund did not provide coverage;
- 500 euros in compensation for moral damages.
The employee based her claim on Article 1382 of the old Civil Code (now Article 6.5 of the Civil Code). According to her, the fault committed by the employer, which caused her damage, consisted of a breach of:
- Article 20, 2° of the Employment Contracts Act (“The employer is obliged: (…) 2° to ensure, as a good father, that the work is performed in proper conditions with regard to the safety and health of the employee and that first aid can be provided to him in the event of an accident. To this end, a first aid kit must be continuously available to the staff;”);
- the obligations regarding the taking of preventive measures (Welfare Act and Code on Welfare at Work);
- the general duty of care.
The labour court declared all claims unfounded and ordered the employee to pay the court costs.
The court deemed the employee’s claims regarding a chronic staff shortage, high work pressure, and being repeatedly called upon to replace sick colleagues to be “too vague” to constitute a breach of any statutory provision or of the general duty of care. For instance, the employee did not specify how often and/or when she had to step in for sick colleagues. Nor was it clear whether she frequently had to work overtime or if compensatory time off or overtime pay had been refused. The court also noted that the employee did not claim wages for overtime worked but not paid.
According to the court, the mere existence of a staff shortage or the frequent need to fill in for sick colleagues do not in themselves constitute statutory infringements or breaches of the general duty of care. Such infringements would exist, however, if it were to appear that the employer required the employee to systematically work overtime without granting compensatory time off or payment of overtime pay (which was therefore not claimed).
Whereas the employee served as a fixed point of contact for the staff without receiving an official job title or remuneration in this regard, the court established that the employment contract contained a clause in which she agreed to perform other duties should the need arise. There was also no evidence that the employee had ever objected to performing those additional duties. The court therefore concluded that there was an agreement between the parties regarding those additional duties without additional wage agreements. The employee also failed to prove that she would have been placed in a higher wage scale in accordance with the sectoral collective labour agreements. The court could only establish that the employee did not institute a wage claim to recover back wages relating to those additional duties.
The court also found no violation of statutory obligations regarding the monitoring of the employee's incapacity for work. The employee, of Dutch nationality, may have harbored overly high expectations based on the Dutch system for monitoring incapacity for work (which was not applicable to her employment contract). The additional obligations introduced in Belgium since January 1, 2026, regarding the reintegration of incapacitated employees and the prevention of long-term absences do not apply to the assessment of whether or not the employer's conduct regarding the onset of the burnout on August 7, 2024, was erroneous.
The employee also failed to demonstrate that the follow-up regarding her incapacity for work constituted a breach of the general duty of care. It appeared that there were indeed regular contacts with the employee throughout the entire duration of her absence. In the court's opinion, the employer's engagement of a prevention officer for this purpose was neither erroneous nor negligent.
Finally, the court ruled that the employee herself adopted an unreasonable attitude by making a return to work conditional on a prior meeting between the employer, herself, and her partner. The partner is a third party with regard to the employment contract, and the employer is not obliged to hold a meeting with that partner. Nor did the employer commit an error by requesting the employee's partner to leave a meeting.
Hans Van Rompaey, Partner Attorney
hans.vanrompaey@mploy.be
4 Regulations – regarding podcasts and statute of limitations
Too much or too little pay; what now?
In the VRT podcast 'Money Time', MNM DJ Charlotte Sieben and financial expert Chris Sugira discuss weekly questions young people have about money matters. In the episode of April 7, 2026, employee wages were discussed.
Chris Sugira explained that an employer has up to ten years to reclaim money if they paid too much. However, if the same employer pays too little, the employee would only have five years to hold their employer accountable. And, it was stated, anyone who has changed employers in the meantime suddenly has only one year left to claim the correct wage.
The podcast creators were surprised by this difference in timeframes – but is this correct?
1. The employer pays too much.
An employer who overpays indeed has ten years from the date of payment to recover the undue portion (Art. 2262bis, §1, first paragraph of the old Civil Code). According to settled case law, this claim is not based on the employment contract, but on the general provisions regarding undue payment (Cass. 10 October 2016, JTT 2016, 464; Brussels Labour Court 12 March 2018, JTT 2018, 296-298; Brussels Labour Court 6 November 2018, JTT 2019, 73-75). Consequently, the general limitation period applies, and not the specific periods under the Employment Contracts Act.
The employee who received wages paid in error will have to repay both the net amount actually received and the withheld payroll tax. He does not have to repay the employee social security contributions (Cass. 16 September 2019, AR S.17.0079.F – S.18.0042.F, RW 2022-2023, issue 3, 117). The employer recovers these from the National Social Security Office (RSZ).
Moreover, the employer must recover the undue amount by means of a separate claim and may not deduct it from the next wage payment. After all, the undue payment is not considered an advance on the next wage, so there is no legal basis to deduct this amount (Cass. 12 December 2022, S.21.0081).
2. The employer pays too little.
A. Choice option for employee
An employee who receives insufficient wages can, of course, hold the employer liable. However, the length of time the employee can pursue this claim is more nuanced than Sugira suggests.
An employer who pays no or insufficient wages obviously commits a breach of contract. Furthermore, the non-payment or incomplete payment of wages or holiday pay is a criminal offense. Please note: severance pay is not 'wages'. Therefore, an employer who does not pay such compensation (in full) does not commit a criminal offense.
Since the non-payment or incomplete payment of wages constitutes both a contractual breach and a criminal offense, the employee can bring his claim in various ways. His choice affects the statute of limitations.
B. Claim based on contract
If the employee holds their employer liable for non-compliance with the employment contract ('claim ex contractu'), the special limitation periods under labor law apply. Unlike the recovery of an undue payment, this claim by the employee does, according to settled case law, arise from the employment contract. Consequently, the special time limits under labor law apply. Consequently, an employee has, in principle, five years to claim the outstanding wages.
However, this period is limited to a maximum of one year after the end of the employment relationship.
C. Claim ex delicto
Since non-payment or incomplete payment of wages is also a criminal offense, the employee may also bring a claim for compensation for the damage suffered as a result of that offense (the so-called 'claim ex delicto'). In that case, the employee will naturally have to prove the existence of the offense – and thus the presence of the material and moral elements. For the moral element of the wage offense, negligence suffices; it will therefore not be particularly difficult to prove this.
A claim for compensation for damages arising from a criminal offense follows the general rules of limitation for non-contractual claims. The limitation period for non-contractual claims is five years. However, this claim cannot become time-barred before criminal proceedings. Since the wage offense only becomes time-barred ten years after the criminal act, the employee, in other words, has at least ten years to claim the outstanding wages. If the employer pays too little wages every month or too little end-of-year bonus every year, he is guilty of a “continuing” offense. In that case, the limitation period only begins to run with the last insufficient payment. In other words, an employee who received wages below the sectoral wage scale for, say, 25 years, can claim back wages for that entire period. That claim only becomes time-barred 10 years after the last (insufficient) wage payment.
In certain cases, the employee can hold their employer liable for an even longer period. After all, the non-contractual limitation period only begins to run once the injured party actually becomes aware of the damage or its aggravation. When an employer simply pays too little wages, an employee will likely notice this immediately. This is, however, much less evident when the employer makes incomplete contributions under a group insurance policy. In such a case, the Ghent Labour Court accepted that the employee only became aware of the damage suffered upon reaching retirement age.
3. Conclusion
The surprise of the podcast creators in 'Money Time' is therefore understandable, but is based on an oversimplified and thus incorrect representation.
Although the employer indeed has ten years to recover the amount in the event of an undue payment, the employee also has at least ten years in most cases to claim back wages.
Floor-Jan Claeys, lawyer
floorjan.claeys@mploy.be