Be Aware – June 2023

Balancing work and politics in Belgium: Extended leave for mayors during emergencies

Belgian employment law stipulates specific leave for workers with an elected mandate. This can either be workers who suspend their employment contract to become a full-time politician. Or it can be workers who reduce their working hours to take up a political mandate.

The system applies at local level for mayors, aldermen and members of the city council. But it also applies to some mandates at regional level. It doesn’t apply to members of federal Parliament or the Parliament of the regions or the communities.

For mayors, the system can either take the form of a complete suspension of the employment contract, or leave of a maximum of two days per week. For aldermen and members of the city council, the leave varies between half a day and two and a half days per month, depending on the number of inhabitants of the city involved.

Political leave should in principle be taken up in blocks of 12 months.

In some crisis situations, mayors will have to spend more time on their mandate. In the case of severe flooding for instance, a mayor is responsible for both the police and the firefighting department, so they’ll have to work far more than the usual number of hours.

A new type of political leave has been introduced for this type of emergency situation. The new leave applies to “an emergency with the consequence that the exceptional and continued availability of the worker in the capacity of mayor is required.” The notion of “emergency” is rather vaguely defined as “any event that causes or can cause harmful consequences for the society in the municipality or city involved, such as a serious disturbance of the public safety, a serious threat to the life or health of persons or to important material interests.” There is no particular procedure that should be followed to assess whether or not this condition is met. The normal rules on unjustified absence will apply if a mayor takes up this leave and the employer contests that this condition is being met.

The leave can be taken up during the period the emergency applies, without there being a fixed maximum duration.

Political leave is in principle paid leave, except when it comes to mayors (who are not entitled to their remuneration during political leave). For an emergency in the sense of the new Act, the mayor will be entitled to the normal remuneration at the expense of the employer.

But the employer can obtain reimbursement of the remuneration paid to the mayor from the city or municipality of the mayor. This reimbursement covers both the net remuneration, the tax withholdings and the social security contributions paid by the employer.

It’s up to the municipality or city to determine to what extent the continued payment of the remuneration can be cumulated with the compensation paid by the municipality or city.

Political leave also involves protection against dismissal. If a worker is a candidate for one of the political mandates covered by the system, and the worker informs their employer of this by registered mail at the earliest six months before the elections for the mandate, the employer is not allowed to terminate the worker’s employment contract. That is unless the employer can prove the reasons for the termination were unrelated to the political mandate. If the employer cannot establish this, the employer will have to pay an indemnity of six months’ remuneration, on top of the normal termination indemnity. This protection applies up to three months after the election if the worker is not elected. If the worker is elected, the protection applies for the full duration of the political mandate, and the six-month period following the end of the political mandate.

 

Belgium discrimination law: Parliament updates regulation with new compensation rules

The Belgian Act of 5 May 2007 combatting certain forms of discrimination states that Parliament should evaluate the application and efficiency of discrimination law every five years. In the framework of this five-year cycle, on 22 June 2023 Parliament approved a draft Act amending:

• the Act of 30 July 1981 aimed at punishing certain acts motivated by racism or xenophobia;
• the Act of 10 May 2007 combatting certain forms of discrimination; and
• the Act of 10 May 2007 combatting certain forms of discrimination between men and women.

The Belgian legislation on discrimination consists of three separate Acts, each with their own protected criteria.

The protected criteria under the Act of 30 July 1981 are “nationality, race, skin colour, descent or national or ethnic origin.”

The protected criteria under the Discrimination Act of 10 May 2007 are “age, sexual orientation, civil status, birth, fortune, belief or conviction, political opinion, trade union opinion, language, health, disability, physical or genetic characteristic or social origin.”

The protected criteria under the Gender Act of 10 May 2007 are “gender, pregnancy, medically assisted procreation, birth, breast feeding, maternity, family responsibility, gender identity, gender expression, sexual characteristics and change of gender.”

Discrimination is often based on several protected criteria. And there was no specific legislation on this point. The updated legislation introduces two new notions. The first is cumulative discrimination, defined as “the situation when a person is discriminated on the basis of several protected criteria which are cumulated, but remain separable.” The second is intersectional discrimination, defined as “a difference of treatment on the basis of several protected criteria which interact and become inseparable.”

An example of cumulative discrimination in the Parliamentary works would be an employer sending an email with the message “no foreigners, no workers without experience and no women with young children” to a recruitment agency. An example of intersectional discrimination would be a hotel systematically refusing access to women of Asian descent, as the discrimination combines two criteria (Asian men and women of different descent were allowed).

In the field of employment relationships, a victim of discrimination can claim compensation for the actual prejudice (which requires submitting evidenced confirming the precise amount of the actual prejudice). Or they can claim a lump sum compensation of six months’ pay (which does not require any evidence of the prejudice).

For either cumulative or intersectional discrimination, the Employment Tribunals can now combine the lump sum compensation for each of the protected criterion involved. If it is established there was discrimination both on the basis of gender and ethnic origin for example, an Employment Tribunal could grant compensation of 12 months’ pay.

The new legislation doesn’t include any criteria indicating when the lump sum compensations should be cumulated and when they shouldn’t. So it remains to be seen how the case law will evolve.