Newsletter // February 22
1 Rush Hour HR – March 15, 2022 – 7:45 AM – 4Wings (Westerlo) & online
The following topics will be discussed after an extensive breakfast:
- Working with “subcontractors” (Dirk Wijns – Mploy)
- The lesson from PostNL (Steven Renette – Mploy)
- Current affairs, including
- the extension of KB 213 in the construction sector
- the indexation of wages
- the changes in the plus plans
- overtime in 2022
- the employment deal
You will find more information and the opportunity to register here
2 Jurisprudence – protection of persons with disabilities extended
Court of Justice 10 February 2022, C-485/20
The employer is obliged to offer another open position to an employee who, due to a disability, can no longer perform the job for which he or she was recruited.
We know that an employer may not discriminate against a person with a disability, whether they are self-employed, employed, or civil servants. Moreover, the employer must make the necessary "reasonable adjustments" so that the person with a disability can continue working. All of this is regulated by the Act of 10 May 2007 on combating certain forms of discrimination, which implements European Union Directive 2000/78.
HR-Rail is the employer of all NMBS employees. They recruited a specialized railway maintenance worker for a position at Infrabel. This person began on November 21, 2016, on a probationary basis, albeit within a statutory framework. During this probationary period, a heart condition was diagnosed in December 2017, requiring the insertion of a pacemaker. This pacemaker is sensitive to electromagnetic fields, particularly prevalent near railways. Because of his pacemaker, the maintenance worker could no longer perform the job for which he was interning.
On October 26, 2018, HR Rail informed him that his probationary period was being terminated in accordance with the provisions of the statutes and regulations for Belgian railway personnel. The reason for this was that he was completely and permanently unable to continue performing the tasks for which he had been hired. Unlike permanently appointed employees, employees who are undergoing a probationary period and are recognized as having a disability, and are therefore no longer able to perform their duties, are not eligible for appointment to another position within the company.
The maintenance worker appealed his dismissal to the Council of State, which then referred a preliminary question to the Court of Justice. The Council asked whether the (EU law) prohibition of discrimination on the grounds of disability, implemented in Belgium by the Anti-Discrimination Act of 10 May 2007, also means that the employer must offer another job to a person who, due to a disability, is no longer able to perform their essential duties.
The Court of Justice answered this question affirmatively in its judgment of 10 February 2022. Appointing the maintenance worker to another position for which the disabled person is eligible may constitute a reasonable adjustment within the meaning of anti-discrimination legislation.
In general, however, the employer is not obligated to take measures that would impose a "disproportionate burden" on them. In this regard, the Court notes that "the possibility of appointing a person with a disability to another post exists only where there is at least one vacant post that the worker concerned can fill."
The latter, of course, significantly limits the rather radical new step the Court of Justice is taking with this judgment. In previous case law, the Court stated that the obligation to adapt was limited to the individual's own position (see L. Vermeulen, Discrimination in Employment Relations 2.0, Equal Monks, Equal Hoods, Intersentia, 2020, 133-134).
Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be
3 Jurisprudence – a speed check that wasn't one
Corr. Tongeren December 9, 2021, unpublished
The court acquits a man accused of obstructing the supervision exercised by the social inspectorate.
A social inspector who takes photos from her car and then drives away has ended her investigation. One can only obstruct a social inspector's investigation if one is aware that an investigation is underway. This presupposes that the social inspector identifies themselves.
BR operates his freelance business from home. One day, he notices that photos are being taken from a car of his garage, van, trailer, and himself. The car drives away before BR can speak to the driver. He gets in his car and starts the pursuit. At a road narrowing, the driver is forced to stop, and BR approaches her car. The driver opens the car window "by 5 cm," according to the court order. She identifies herself as a social inspector. BR leaves it at that and drives home. Some time later, he receives a summons in the mail stating that he is being prosecuted for obstructing supervision (Article 209 of the Social Criminal Code). This is a misdemeanor punishable by a level 4 penalty (6 months' imprisonment up to 3 years and/or a criminal fine of €4,800 to €48,000).
The criminal court in Tongeren acquits the defendant.
The court's ruling can be fully upheld. Until he was at her car window, BR was unaware that the driver was a social inspector. The offense of "obstructing supervision" (Article 209 of the Social Security Act) is an intentional offense, meaning that the public prosecutor must demonstrate that the defendant acted intentionally and deliberately. This presupposes that the defendant is at least aware that a social inspector is conducting an inspection. That was not the case here. Moreover, the inspection can only be obstructed during its execution. In this case, the social inspector had already left the scene. In other words, the inspection was already over at that point.
The ruling perhaps unintentionally raises another thorny issue: whether a social inspector is permitted to take unsolicited photographs of a workplace and the people who may be found there. At first glance, the answer to this question seems straightforward: the Social Penal Code explicitly authorizes a social inspector to make observations by taking visual material (Article 39 of the Social Criminal Code). This visual material is considered valid until proven otherwise if it is included in a report containing a number of mandatory information (Article 39, Section 3 of the Social Criminal Code).
The question that then arises is whether the social inspector must inform the person being monitored of their identity before recording this footage. Article 20 of the Social Security Act (Soc. Sw) obliges the social inspector not only to be in possession of the identification document – as required by the now-repealed Labor Inspection Act – but also to always present it (sic).
Can the social inspector no longer make any determination without first presenting proof of identity?
It is assumed that the social inspector must present this identification document as soon as he or she uses the special powers listed in Title 2, Chapter 2 of the Social Penal Code: these include, among other things, free access to workplaces (inter alia, Article 23 of the Social Security Act), the questioning of persons (Article 27 of the Social Security Act), the extended right to search (Article 28 of the Social Security Act) and the taking of visual material (Article 39 of the Social Security Act).
In short: the social inspector can still conduct their own (sensory) observation without first presenting their ID. However, if they want to capture their (sensory) observation on film, they will have to identify themselves.
Bonus: compliance with the ID requirement is not mandatory under penalty of nullity. The fate of illegally obtained evidence lies – once again… in the hands of the judge.
Steven Renette, lawyer-partner
steven.renette@mploy.be
4 Jurisprudence – withholding documents can cost employers dearly
Antwerp Labor Court, Tongeren Division, November 4, 2021, unpublished
The persistent refusal to submit documents in accordance with the judge's instructions may give rise to a maximum legal costs award based on the manifestly unreasonable nature of the situation.
An employee claimed provisional severance pay because he lacked all the necessary documentation to definitively estimate the amount. For example, the employee had no insight into the precise amount of employer contributions to group and hospitalization insurance.
In an interim judgment dated January 6, 2016, the Antwerp Labor Court, Tongeren Division, ordered the employer to (among other things) pay the provisionally claimed severance pay and to submit all relevant documents related to the group and hospitalization insurance to enable the employee to definitively calculate the severance pay. The judge did not impose a penalty payment on this judgment, despite the employee's request.
The employer ignored the judge's decision, even when the case was heard on appeal before the labor court on his claim.
The Antwerp Labor Court, Hasselt Division, ruled that the labor tribunal had rightly ordered the employer to submit documents regarding the group and hospitalization insurance. Since the investigative measure ordered by the first-degree judge was upheld on appeal, the case was remanded to the Antwerp Labor Court, Tongeren Division, pursuant to Article 1068 of the Judicial Code.
In a (second) interlocutory judgment of 25 May 2021, the Labour Court established that the employer had still not complied with the instruction to produce documents given in the first interlocutory judgment of 6 January 2016:
“The Court must establish that the defendant, although responsible as the employer, has failed to produce official documents regarding the group insurance and hospitalisation insurance (…) after five years of proceedings.”
As a result, the court was still unable to issue a final judgment awarding a definitively estimated severance payment.
This time, however, the court did link a penalty to the order to submit documents.
The employee claimed a maximum legal costs compensation of €7,800 due to the manifestly unreasonable situation created by the employer's negligent conduct. Reference was made to cassation case law, which states that a party to the proceedings is entitled to the maximum legal costs compensation when the other party has not cooperated loyally with the presentation of evidence and, in that regard, persists in an attitude already criticized by the court (Cass., June 4, 2009).
Referring to the aforementioned cassation case law, the Antwerp Labor Court, Tongeren Division, awarded the maximum legal costs of €7,800. In the court's opinion, the documents submitted and the course of the proceedings clearly demonstrated that the employer had, against her better judgment, made this dispute as complex as possible and that she adopted a highly reprehensible attitude, as already established in the judgment of the Antwerp Labor Court, Hasselt Division, of June 16, 2020, and in the interim judgments of the Labor Court of January 6, 2016, and May 25, 2021.