Newsletter // October 22

1 Office news

Mploy greets a new employee, Mr. Luc Goris. At the start of his career, he worked for many years as a corporate lawyer in the banking and insurance sector. Since 2013, he has specialized as a lawyer in the various branches of individual and collective employment law, and the related aspects of corporate law, company law and privacy regulations. He is very familiar with independent collaboration agreements. After working for around ten years for renowned law firms specialized in employment law, he now joins the Mploy team in Westerlo.

2 Rush hour HR

The Rush Hour HR of October 11, 2022 was once again a great success. You will find the aftermovie here

3 Case law – does refusing a guaranteed wage guarantee against problems?

Arbh.
Hasselt June 16, 2020: who makes control impossible? An employee reported sick after a conflict with the employer. He sent out a medical examiner. The doctor presented himself to the employee's home, but her husband did not let him in. He then had to turn around and inform the employer about his experience. The employer decided to deny the employee the guaranteed wage because she had made the inspection impossible. She goes to court and demands the guaranteed wage. Both the labor court and the labor court granted the employee's claim: after all, it was not the sick employee who had made the inspection impossible, but her husband. The behavior of the spouse may not be attributed to the sick employee.

Arbrb.
Antwerp July 13, 2022: examining doctor fooled? An employee reported incapacitated for work from February 1 to 21. The work regulations included a provision stating that the incapacitated employee had to be available every day during the first fourteen days of illness: on Mon-Tue-Thurs-Fri from 12 noon to 4 p.m. and on Wed from 1 p.m. to 5 p.m. The examining doctor visited the employee on Thursday, February 4 at 3:10 PM. This was a time when, in principle, she had to be at home according to the provision in the work regulations. The examining doctor found no one at home, left a message and wrote up a report. The next day, the employee sent an email in which she volunteered for a check-up. According to her, she was in the garden at the time of the inspection to give her views on the new garden house that was being installed at the time. The employer ruled that it had violated the availability obligation and sanctioned this by not paying a guaranteed wage. The employee goes to court and is vindicated. According to the labor court, the absence of an employee during an inspection should not automatically be equated with withdrawal from an inspection. According to the court, this was not the case here for the following reasons: (a) the one-off nature of the missed check, (b) the employee's immediate and spontaneous offer for a new check, (c) the fact that a a one-time missed check does not yet prove withdrawal (d) the employer's refusal for a new check, (e) there was no reason to doubt the findings of the certified incapacity for work. The court decides that with its refusal the employer has failed to comply with the obligation to execute the employment contract in good faith. He is ordered to pay the guaranteed wage.

Employers who receive a report from the examining physician must still verify whether the findings justify the denial of guaranteed wages. From these two statements one would conclude that it is up to the employer to demonstrate with hard evidence that the employee has evaded control. However, it is the employee who relies on the exception regime of the guaranteed wage: a wage is paid without any work performance in return. Shouldn't the burden of proof rather rest with the party that relies on this exceptional regime? In other words: isn't it the employee who must demonstrate that he has done everything possible to ensure that the inspection can be carried out?

Steven Renette, lawyer
steven.renette@mploy.be

4 Legislation – Whistleblowers protected

Whistleblowers will soon enjoy protection and employers must take measures to enable them to blow the whistle.

The law will be approved in Parliament in the coming days.
It will apply two months after publication in the Belgian Official Gazette to employers with at least 250 employees; it will apply to employers with more than 50 employees from December 17, 2023. Below you will find a brief overview of the most important elements of these regulations.

Scope of application
The new rules apply to any legal entity that employs at least 50 employees.

The “employees” who are protected and guided as whistleblowers by the provisions of the law are not only employees, former employees and persons who can be equated with them, but also applicants, self-employed persons and directors in companies or non-profit organizations. We hereinafter call them “reporters”. Third parties (family members, colleagues, etc.) who are connected to the reporter AND who could become the victim of a reprisal measure in a work-related context can also rely on the protection measures.

The legislation applies if a reporter provides information (even if it is only based on reasonable suspicion) about actual or possible infringements that have taken place or will take place (or about initiatives to conceal them) in a wide range of areas. The areas to which infringements may relate (in addition to financial services) are environmental safety, public health, food safety, privacy regulations, etc. The Belgian legislator has also added that the law also applies to the reporting of tax fraud and social fraud.

Procedures and protection
The law provides for
– the obligation for employers to
o set up an internal channel for reporting infringements
o maintain a register to record infringements and follow up
o inform employees in the company about this informing
– the obligation for the government to provide an external reporting channel (the Federal Ombudsman)
– a prohibition and protection against retaliation for disclosing an infringement with a reversal of the burden of proof and special damages.

Internal reporting channel and register
The employer must set up an internal reporting channel where reporters can report information about the infringement. Companies with fewer than 50 employees are not required to have an internal reporting channel. A report must also be possible anonymously - in a company with at least 250 employees.

The internal reporting channel is managed within the company by a reporting manager or made available externally by a third party. This must be done “after consultation with the social partners”. At least employees (in the strict sense of the word) must be able to make an internal report. The report must be able to be made confidentially.

The draft law stipulates that the employer must establish the necessary procedures to ensure that the internal report can be made and that the necessary action is taken (for example, feedback must be provided within 3 months after the report).

Each notification must also be recorded (in a register). Depending on the manner in which the notification is made, the law determines how registration can take place.

The law expressly provides that the reporter is not obliged to first report internally. He can also choose to report to the external channel or to make the information about the infringement public.

Protection against retaliation and compensation
The reporter who makes an internal or external report of an infringement or announces it (via social or other media) enjoys protection provided he had a reasonable reason to believe that the reported information is correct and that it is effective. concerned infringements of the regulations falling within the scope of the law.

First of all, the reporter may not be the subject of any reprisal for this reason. Nor should he or she be threatened with this.

The reporter or the third party who believes he or she is the subject of (threat of) reprisal can submit a reasoned complaint to the Federal coordinator. If the complaint is possibly justified, he will take the initiative to ask the employer to provide proof that the measure that is detrimental to the person concerned is not related to the complaint he has submitted. If the coordinator subsequently judges that there is a reasonable suspicion that there is a connection between the report and the retaliation, he will recommend to the employer to undo the retaliation or the damage resulting from it.

The victim of reprisal can also claim compensation. This is equal to an amount between 18 and 26 weeks' wages if it concerns an employee; in other cases the damage must be proven. This compensation cannot be combined with compensation for manifestly unreasonable dismissal.

Reporters also enjoy immunity from prosecution for damages, criminal sanctions, disciplinary measures, etc. provided they had “reasonable grounds to believe that the reporting or disclosure of such information was necessary for disclosing an infringement under these law." Furthermore, reporting a breach internally or externally cannot lead to dismissal for urgent reasons.

Criminal sanctions and administrative fines
Finally, the new regulations contain criminal sanctions or administrative fines for non-compliance with the law, for example by preventing reports or taking reprisals.

Reporters who have deliberately reported or made public false information may also be subject to criminal sanctions.

Determinations regarding non-compliance with the regulations regarding the internal reporting channel and the prohibition against reprisals can be made in accordance with the provisions of the Social Criminal Code.

Conclusion
Companies with at least 250 employees must implement this whistleblower scheme as soon as possible. Companies with 50 employees or more should also prepare in advance. They should be ready for this by the end of next year.