Newsletter // May 22
1 Mploy expands
Since the beginning of May, our team of social law experts has expanded with four lawyers. They previously worked in the social law practice of Argus Advocaten.
Mr. Veerle Scheys and Mr. Steven Vandebroekhave approximately 20 years of experience in our field. They provided thorough training for the two junior employees who joined them, Mr. Leen Vandenholt and Mr. Merel Van de Voorde.
2 Rush hour HR
3 Mploy in the media
On May 31, 2022, De Tijd published an opinion piece by Steven Renette titled: “Government must revise debt collection policy for companies.” You can read the piece here
4 Legislation – the powers of the social inspectorate have been expanded
Act of 1 April 2022 amending Section 2/1 of the Social Penal Code concerning the special powers of social inspectors in the field of findings on discrimination (BS, 28 April 2022)
In our previous newsletter, we discussed the relaxation of the rules regarding mystery calls in the fight against discrimination. The law has since been published in the Government Gazette and will take effect on May 8, 2022.
One aspect of the new provisions in the Social Penal Code was underexposed in our previous newsletter. The law now explicitly stipulates (in Article 42/2) that inspectors of the Social Laws Inspectorate can use all their powers – and these are very extensive – to investigate and record acts that, while not punishable, are prohibited by anti-discrimination legislation. A complaint from a (former) employee about discrimination at work based on, for example, a disability, current or future health condition, age, sexual orientation, or physical characteristics, can now lead to an investigation by the social inspectorate, which will utilize all available resources.
A side note in this regard: in its judgment in the case of Mr. Finn v. The British Bung Company, the English employment tribunal ruled on May 3, 2022, that an employer who calls a male employee a "bald cunt" is guilty of sexual harassment (in Belgian terms, "unwanted sexual behavior"), because men suffer from baldness much more often than women. The court dismissed the slur "cunt" as "industrial language.".
5 Jurisprudence – pension – mixed career – single career
Constitutional Court January 20, 2022
If someone has more than 45 pensionable career years and a mixed career (as an employee, self-employed person and/or civil servant), the career years that yield the most pension must be taken into account when calculating the statutory pension – also for the years before 2019.
In a ruling dated January 20, 2022, the Constitutional Court issued an important decision on the application of the principle of career unity. This principle stipulated that a maximum of 45 career years (or 14,040 days) may be taken into account when calculating the amount of the statutory pension, even if the pensioner worked more years (as an employee, self-employed person, and/or civil servant). In that case, the excess years were not taken into account.
The legislature already intervened in 2017. For pensions starting January 1, 2019, the application of the single career principle will be limited. Since then, all days worked are taken into account, even if that career spans more than 14,040 days. Days not worked (for example, due to unemployment) that fall after the first 14,040 days are not counted, even if they are more advantageous.
The Constitutional Court had to consider the situation as it applied before January 1, 2019. The Federal Pensions Service applied a strict (automatic) hierarchy (contained in Royal Decrees no. 50 and no. 72), without examining for each individual which career years yielded the most pension and which were the least favorable: first, it considered the years as a civil servant, then those as an employee, and finally those as a self-employed person. Therefore, the self-employed years were eliminated first. This arrangement usually ensured that the most favorable career years were taken into account, but that was not always the case. Consider, for example, a person who started their career as an employee (with a relatively low starting salary) but ended it as a self-employed person/company manager (with a higher income and therefore also higher social security contributions). If they worked for more than 45 years, the self-employed years were automatically (and therefore without any investigation) deducted first. Although the person concerned paid high(er) social contributions as a self-employed person, this did not result in a (higher) pension in return.
The Constitutional Court ruled that this arrangement violates the principle of equality. The Federal Pensions Service must determine the least favorable career years individually (for each pensioner) and eliminate those years.
On January 1, 2019, 35.68% of pensioners in Belgium had a mixed career. The importance of this ruling cannot be underestimated.