Newsletter // April 22
1 Your privacy
Your privacy is very important to us. You can therefore expect an email shortly in which we ask you to give explicit permission to continue receiving these news items and other emails from Mploy. We hope to continue to inform you in the future!
2 Office news
The Labor Law Journal just published a contribution by Steven Renette entitled “The interrogation by a social inspector”. You can read that contribution here . The Employment Law Journal is a digital publication of the Institute for Employment Law of KU Leuven.
On May 5, 2022, with the support of SD Worx, the Master of Laws in Social Law of the Vrije Universiteit Brussel is organizing a private expert lecture on the theme “Discrimination in employment law” with Mr. Ludo Vermeulen as speaker .
written by Mr. Steven Renette was published in De Tijd on April 21, 2022: “Shorten the chain of subcontractors of parcel companies”. You can read the piece here .
3 Rush hour HR
4 Legislation – the bill to expand mystery calls was approved
In the context of the fight against discrimination in the labor market, social inspectors have been able to carry out so-called mystery calls since 2018. For example, a social inspector may apply under a false name to expose an employer's discriminatory recruitment practice.
In practice, social inspectors hardly make use of this - although much commented on - power. To date, they have not conducted more than ten tests. An explanation for this low number is mainly sought in the accompanying conditions: mystery calls could only be carried out if the following three conditions were consecutively met: there had to be (1) a complaint or report (2) supported by objective indications from discrimination and (3) by elements through data mining and data matching. This last condition in particular proved to be an obstacle: there are no databases in which information is stored about the “pre-contractual” phase, ie the period prior to the hiring of an employee. Our legislator had overlooked that.
On March 2, 2022, the Chamber of Representatives approved a bill to amend the Social Criminal Code. The bill does away with the combination of the three conditions. From now on, it is sufficient that a social inspector can base his decision on either a substantiated complaint or objective indications or data from data mining and data matching. The cumulative nature of the conditions is abandoned.
Another criticized provision that was partly responsible for the low number of tests remained untouched: a social inspector must still obtain written permission from the labor auditor before carrying out a test. The social inspectors themselves are said to be requesting this. The labor auditors will therefore help “monitor” the process of using the tests.
The tests can be used against all forms of discrimination – we now have more than 35 discrimination criteria in Belgium… – and not only for the limited cases where discrimination is made punishable (namely: racial and intentional gender discrimination). The effect of this expansion will therefore probably be particularly noticeable in civil proceedings before the labor courts.
The possibility that the law offers to social inspectors to call on a third party to carry out a test is also very controversial. This third party does not necessarily have to be a social inspector. The intention is that the third party can assist the social inspector in his assignment (e.g. drawing up a CV), but he may not be sent to a company to conduct a job interview that is part of a situation test.
The bill was approved in the plenary session of the Chamber of Representatives. We now have to wait for publication in the Staatsblad.
Steven Renette, lawyer – partner
steven.renette@mploy.be
5 Case law – Received is not read (be careful with emails and their attachments)
Antwerp Labor Court, Antwerp department March 28, 2022, unpublished
A dismissal for serious reasons requires that the employee (or the employer) commits a mistake that makes any further professional cooperation immediately and definitively impossible. That mistake could be a one-time event or an ongoing shortcoming. In the latter case, it is 'the victim' who decides when the bucket is full and dismissal for urgent reasons is justified. It is also the dismissing party that bears the burden of proof and must therefore prove the fault of the other party. Insubordination, continuing to refuse to carry out a justified order from the employer, is such a continuing error.
In its judgment of March 28, 2022, the labor court in Antwerp had to consider a case in which an employee was dismissed for urgent reasons because she had failed to return documents (the employer's property) to the employer during a period of illness. The employer had asked this several times (as many as 5 times) by email, without result. The employer sent those emails to the email address that the employee used to send her sick notes to the employer.
The employee acknowledged that she had received the emails and that she had opened her personal inbox. She said she had not read the emails from her work. Because she was ill, this could not be expected of her.
The labor court ruled that the employer could not prove that the employee had actually read the emails. She concluded that the employer did not prove that the employee ignored her instructions. The employer was therefore unable to prove the employee's fault and was ordered to pay severance compensation. The labor court also gave a tip that in the future it would be better for the employer to send a registered letter with acknowledgment of receipt. The judge does not explain how the employer could prove that the employee would have read this letter (and not merely received it).
It therefore seems appropriate to send a registered letter - possibly in addition to an e-mail (with read confirmation?) - to give the employee notice of default or to give instructions.
In Germany they went one step further. The Oberlandesgericht in Hamm ruled on March 9, 2022 that one cannot expect the recipient of an email to also open the attachment(s) to that email. After all, according to the judge, it is common knowledge that attachments to emails can contain malware. According to the German court, the recipient had therefore not taken note of the letters from the sender that were attached to an e-mail. The fact that the email itself had been received and read was apparently not questioned.
So you still need to be careful with communication via e-mail.
Eline Jacobs, lawyer
eline.jacobs@mploy.be