Newsletter // May 22
1 Mploy is expanding
Since the beginning of May, our team of experts in social law has been expanded by four lawyers. They previously worked in the social law practice of Argus Advocaten.
Mr. Veerle Scheys and Mr. Steven Vandebroek can boast about 20 years of experience in our area of expertise. They provided thorough training for the two junior employees who made the switch, 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 entitled: “Government must revise collection policy at companies.” You can read the piece here .
4 Legislation – the powers of the social inspectorate have been expanded
Act 1 April 2022 amending section 2/1 of the Social Criminal Code regarding the special powers of social inspectors in the field of findings regarding discrimination (BS, 28 April 2022)
We wrote in the previous newsletter about the relaxation of the regulations regarding mystery calls in the fight against discrimination. The law has now been published in the Government Gazette and will come into effect on May 8, 2022.
One part of the new provisions in the Social Criminal Code was underexposed in our previous newsletter. The law now expressly provides (in article 42/2) that the inspectors of the Social Law Supervision can use all their powers - which are very extensive - to detect and establish acts that, without being punishable, are prohibited by the anti-discrimination legislation. A complaint from a (former) employee about discrimination at work due to, for example, a disability, current or future health status, age, sexual preference, physical characteristic, can now give rise to an investigation by the social inspectorate in which all resources are deployed.
A sidestep in this context: in its judgment in the case of Mr. Finn against The British Bung Company, the English labor court 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 swear word 'cunt' was condoned by the court as 'industrial language'.
5 Judiciary – pension – mixed career – career unity
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 have the most benefits must be taken into account - also for the years before 2019 - when calculating the statutory pension. provide a pension.
With a judgment of January 20, 2022, the Constitutional Court made an important ruling on the application of the principle of career unity. This principle meant 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 that take effect from January 1, 2019, the application of the principle of career unity is limited. Since then, all days worked have been 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 do not count, even if they are cheaper.
The Constitutional Court had to consider the situation as it applied before January 1, 2019. After all, the Federal Pension Service applied a strict (automatic) hierarchy (contained in Royal Decree no. 50 and no. 72), without checking per individual which career years yielded the most pension and which years were the least favorable: first he took into account the years as a civil servant, then those as an employee and finally those as a self-employed person. So he first canceled the years as a self-employed person. This arrangement usually also ensured that the most favorable career years were taken into account, but that was not always the case. Just think of a person who started his/her career as an employee (with a relatively low starting wage), but ended his/her career as a self-employed person/manager (with a higher income and therefore also high(er) social contributions). If he/she worked for more than 45 years, the years as a self-employed person were automatically (and therefore without any research) deducted first. Although the person concerned paid high(er) social contributions as a self-employed person, there was no (higher) pension in return.
The Constitutional Court ruled that this arrangement conflicts with the principle of equality. The Federal Pension Service must individually (per pensioner) check which are the least favorable career years and delete those years.
On January 1, 2019, 35.68% of retirees in Belgium had a mixed career. The importance of this judgment cannot therefore be underestimated.