Newsletter // April 22
1 Your privacy
Your privacy is very important to us. Therefore, you can expect an email soon asking for your explicit consent to continue receiving these news items and other emails from Mploy. We hope to keep you informed in the future!
2 Office news
The Labour Law Journal has just published a contribution by Steven Renette entitled “The Interrogation by a Social Inspector”. You can read that contribution here . The Labour Law Journal is a digital publication of the Institute for Labour Law at KU Leuven.
The Master of Laws in Social Law at the Vrije Universiteit Brussel is organizing a closed expert lecture on the theme “Discrimination in Employment Law” on 5 May 2022, with the support of SD Worx, featuring Ludo Vermeulen.
On April 21, 2022, an opinion piece entitled “Shorten the chain of subcontractors for parcel delivery companies” by Mr. Steven Renette appeared in De Tijd. You can read the piece here .
3 Rush Hour HR
4 Legislation – the bill to extend mystery calls was approved
As part of the fight against discrimination in the labor market, social inspectors have been able to conduct so-called mystery calls since 2018. For example, a social inspector may apply for a job under a false name to expose an employer's discriminatory hiring practices.
In practice, social inspectors rarely use this—though much-discussed—authority. To date, they have conducted no more than ten tests. An explanation for this low number is primarily sought in the accompanying conditions: mystery calls could only be conducted if the following three conditions were met: there had to be (1) a complaint or report, (2) supported by objective evidence of discrimination, and (3) evidence from data mining and data matching. This last condition, in particular, proved to be an obstacle: there are no databases storing information about the "pre-contractual" phase, i.e., the period prior to an employee's hiring. Our legislator had simply overlooked this.
On March 2, 2022, the House of Representatives approved a bill to amend the Social Penal Code. The bill abolishes the combination of the three conditions. From now on, it will be sufficient for a social inspector to base their assessment on either a substantiated complaint, objective evidence, or data from data mining and data matching. The cumulative nature of the conditions is also abandoned.
Another criticized provision, partly blamed for the low number of tests, remained untouched: a social inspector must still obtain written permission from the labor auditor before conducting a test. Reportedly, the social inspectors themselves are requesting this. The labor auditors will therefore help "monitor" the process of deploying the tests.
The tests can be used against all forms of discrimination – we now have more than 35 discrimination criteria in Belgium – and not just for the limited cases where discrimination is criminalized (namely: racial and intentional gender discrimination). The impact of this expansion will therefore likely be most noticeable in civil proceedings before the labor courts.
The possibility the law offers social inspectors to engage a third party to conduct a test is also highly contested. This third party doesn't necessarily have to be a social inspector. The intention is that the third party can assist the social inspector in their task (e.g., drafting a resume), but they cannot be sent to a company to conduct a job interview that is part of a situational assessment.
The bill was approved in the plenary session of the House of Representatives. It now awaits publication in the Official Gazette.
Steven Renette, lawyer – partner
steven.renette@mploy.be
5 Jurisprudence – Received is not read (be careful with e-mails and their attachments)
Antwerp Labor Court, Antwerp Division, March 28, 2022, unpublished
Dismissal for cause requires the employee (or the employer) to commit a misconduct that makes any further professional cooperation immediately and permanently impossible. This misconduct can be a one-time occurrence or a persistent shortcoming. In the latter case, it is the "victim" who decides when the bucket is full and dismissal for cause is justified. The dismissing party also bears the burden of proof and must therefore prove the misconduct on the part of the other party. Insubordination, persistently refusing to carry out a legitimate order from the employer, is such a persistent misconduct.
In its judgment of March 28, 2022, the Antwerp Labor Court 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 her employer during a period of illness. The employer had requested this several times (as many as five times) by email, without success. The employer sent these emails to the email address the employee used to send her sick notes.
The employee acknowledged receiving the emails and opening her personal inbox. She said she hadn't read her work emails. Because she was ill, she couldn't be expected to do so.
The labor court ruled that the employer could not prove that the employee had actually read the emails. It therefore concluded that the employer had not proven that the employee ignored its instructions. Consequently, the employer could not prove fault on the employee's part and was ordered to pay severance pay. The labor court also advised the employer to send a registered letter with acknowledgement of receipt in the future. The court did not explain how the employer could prove that the employee had indeed read this letter (and not merely received it).
It therefore seems advisable to send a registered letter – possibly in addition to an email (with a read receipt?) – to put the employee in default or to give instructions.
In Germany, they went even further. On March 9, 2022, the Oberlandesgericht (Higher Regional Court) in Hamm ruled that one cannot expect the recipient of an email to also open the attachment(s) to that email. After all, according to the court, it is common knowledge that email attachments can contain malware. Consequently, according to the German court, the recipient had not taken note of the sender's letters that were attached to an email. Apparently, the fact that the email itself had been received and read was not questioned.
So you still need to be careful when communicating via email.
Eline Jacobs, lawyer
eline.jacobs@mploy.be