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Newsletter // February 22

February 17, 2022

1 Rush hour HR – March 15, 2022 – 7:45 am – 4Wings (Westerlo) & online

The following topics are discussed after an extensive breakfast:

  • Working with “subcontractors” ( Dirk Wijns – Mploy)
  • The lesson of 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 option to register here


2 Jurisprudence – the protection of persons with disabilities expanded

Court of Justice February 10, 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 position for which he was recruited.

We know that an employer may not discriminate against a person with a disability, whether they are self-employed, employees or civil servants. In addition, that employer must make the necessary “reasonable accommodations” so that the person with a disability can continue to work. All this is regulated by the law of 10 May 2007 on combating certain forms of discrimination, which implements Directive 2000/78 of the European Union.

HR-Rail is the employer of all NMBS employees. She recruited a specialized railway maintenance man for a job at Infrabel. This started on November 21, 2016 on a trial basis, albeit in a statutory context. During that probationary period, a heart condition was diagnosed in December 2017, for which a pacemaker was placed. It is sensitive to electromagnetic fields. These fields are mainly present in the vicinity of railways. Due to his pacemaker, the maintenance man was no longer able to perform the job for which he was doing an internship.

On October 26, 2018, HR Rail informed him that his probationary period was terminated in accordance with the provisions of the statutes and regulations of the staff of the Belgian railways. The motive for this was that it was completely and permanently impossible for him to continue the tasks for which he had been employed. Unlike permanently appointed staff members, staff members who complete a probationary period and are recognized as a person with a disability and are therefore no longer able to perform their duties, are not eligible for an appointment to another position within the company.

The maintenance man appealed against his dismissal to the Council of State, which then referred a preliminary question to the Court of Justice. The Council asked whether the (Union 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 grant a person who is no longer able to perform his essential duties due to a disability. have to offer another job.

The Court of Justice answers that question positively in the judgment of February 10, 2022. The appointment of the maintenance man to another position for which the disabled person is eligible may be a reasonable accommodation within the meaning of anti-discrimination legislation.

In general, however, the employer is not obliged to take measures that would impose a “disproportionate burden” on him. In that context, the Court states that “in any case, the possibility of appointing a person with a disability to another position only exists if there is at least one vacant position that the employee concerned can fill.”

The latter obviously significantly limits the radical new step that the Court of Justice is taking with this judgment. In previous case law, the Court indicated that the obligation to adapt was limited to one's own position (see L. Vermeulen, Discrimination in employment relations 2.0, Equal monks, equal hoods, Intersentia, 2020, 133-134).

Ludo Vermeulen, lawyer-partner

3 Judiciary – a flash check that wasn't one

Corr. Tongeren December 9, 2021, not published

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 inspection. One can only hinder the investigation of a social inspector if one is aware that an investigation is underway. This assumes that the social inspector identifies himself.

BR carries out its independent activity from home. On one particular 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 into his car and gives chase. At a road narrowing the driver has to stop and BR goes to her car. The driver opens the car window “by 5 cm,” the verdict reads. She identifies herself as a social inspector. BR leaves it at that and drives back home. Some time later he received a summons stating that he was being prosecuted for obstructing supervision (Article 209 Soc. Criminal Code). This is a crime punishable by a level 4 sanction (6 months' imprisonment 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 decision can be fully supported. Until he stood at her car window, BR did not know that the driver was a social inspector. The crime of “obstructing supervision” (Article 209 Soc. Criminal Code) is an intentional crime, which means that the public prosecutor must prove that the defendant acted deliberately and purposefully. This presupposes that the defendant is at least aware that an inspection is being carried out by a social inspector. That was not the case here. Moreover, supervision may even be hampered during its implementation. Here the social controller had already left the scene. In other words: the check had already ended at that moment.

The verdict probably unintentionally exposes another thorny issue and that is the question of whether a social inspector may take unsolicited photos of a workplace and of the people who can be found there. At first glance, the answer to this question seems simple: the Social Criminal Code explicitly grants a social inspector the authority to make findings by making images (art. 39 Soc. Criminal Code). This visual material applies until proof to the contrary if it is incorporated into an official report that contains a number of mandatory statements (Article 39 §3 Soc. Criminal Code).

The question that then arises is whether the social inspector must inform the auditee of his capacity prior to making this footage. Article 20 Soc. Sw. obliges the social inspector not only to be in possession of the proof of identity - as prescribed by the now abolished Labor Inspection Act - but also to always present it (sic).

Can the social inspector no longer make any determination without first presenting his proof of identity?

It is assumed that the social inspector must present this proof of identity as soon as he makes use of the special powers listed in Title 2, Chapter 2 of the Social Criminal Code: this concerns, among other things, free access to jobs (including Article 23 of the Soc. ), the interrogation of persons (Article 27 Soc. Criminal Code), the extensive right of search (Article 28 Soc. Criminal Code) but also the taking of images (Article 39 Soc. Criminal Code).

In short: the social inspector can still make his own (sensory) observation without first presenting his ID. If he wants to record his (sensory) perception on image, he will have to identify himself.

Addendum: compliance with the identification requirement is not prescribed under penalty of nullity. The fate of unlawfully obtained evidence lies – once again… in the hands of the judge.

Steven Renette, attorney-partner


4 Case law – withholding documents will cost the employer dearly

Antwerp Labor Court, Tongeren department November 4, 2021, not issued

The persistent refusal to submit documents in accordance with the judge's instruction may give rise to a maximum legal compensation on the basis of the manifestly unreasonable nature of the situation.

An employee claimed a provisional severance payment as he did not have all the documents 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 department, ordered the employer to (among other things) pay the provisionally claimed termination compensation as well as to submit all useful documents in connection with the group and hospitalization insurance in order to enable the employee to to definitively estimate the termination compensation. The judge did not attach a penalty to that conviction, 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 department ruled that the labor court had rightly summoned the employer to provide documents regarding the group and hospitalization insurance. Since the investigative measure ordered by the first judge was confirmed on appeal, the case was sent back to the Antwerp Labor Court, Tongeren department, in application of Article 1068 of the Judicial Code.

In a (second) interim judgment of May 25, 2021, the labor court determined that the employer had still not complied with the instruction to submit that was given in the first interim judgment of January 6, 2016: “The court must determine that the defendant,
although she is responsible as an employer, fails to provide official documents regarding the group insurance and hospitalization insurance (...) after five years of procedure.”

As a result, the court was still unable to issue a final judgment with an award of a definitively estimated severance payment.

However, this time the court linked a penalty to the order to produce documents.

The employee claimed a maximum legal compensation amounting to € 7,800 because of the apparently unreasonable situation that had arisen due to the negligent attitude of the employer. Reference was made to cassation case law, which states that a party to the proceedings is entitled to the maximum legal compensation if the other party has not loyally cooperated in the production of evidence and that in that context it persists in an attitude that had already been criticized by the judge (Cass. 4 June 2009).

With reference to the aforementioned cassation case law, the Antwerp Labor Court, Tongeren department, awarded the maximum legal compensation of € 7,800. In the opinion of the court, it was clear from the documents submitted and from the course of the proceedings that the employer, against his better judgment, had made this dispute as complex as possible and that it adopted a very reprehensible attitude, as was already established in the judgment of the Antwerp Labor Court, Hasselt department of June 16, 2020 and in the interim judgments of the Labor Court of January 6, 2016 and May 25, 2021.

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