Be Aware - April 2023

Holiday leave can be transferred to the subsequent year as of 2024

Workers should use their statutory holiday leave for each year by 31 December of the year in question.

But sometimes an employee might not use all their days by the end of the year. For instance if a worker planned to use their remaining days between Christmas and new year, but had an accident at the beginning of December and could only get back to work in January.

In that case, Belgian law stipulated the unused days should be paid out at the end of the year. So the worker received holiday pay for those days, but couldn’t use the days in question.

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time sees holiday leave from a health angle, so stipulates that holiday leave can only be replaced by a payment if the employment relationship ends.

On this point Belgian law was contrary to European law. A Royal Decree of 8 February 2023 solves most aspects of the issue.

The basic rule still says that employees must use holiday leave by the end of the year. If an employee can’t take all days because of absence resulting from an accident at work, illness, maternity leave, paternity leave, adoption leave or care leave, the unused days will now be transferred to the subsequent year. The employee must take the days either in the subsequent year or in the year afterwards.

The provision stipulating that holiday pay for any unused days must be paid at the end of the year remains. The unused days still have to be paid out at the end of December, even if those days are transferred to the subsequent year. So the worker will not receive any remuneration when taking one of those transferred days, as the holiday pay for those days was already paid out.

Nothing changes in the calculation basis of the holiday pay. If an indexation of increase of the remuneration takes place on 1 January, transferring holiday leave to the subsequent year does not make any difference when it comes to the amount of holiday pay.

A separate change introduced by the Royal Decree of 8 February 2023 is that sick leave is no longer imputed to the holiday leave a worker is entitled to, irrespective of whether the worker falls ill before the scheduled period of holiday leave, or during the period of holiday leave. Those days will be taken at a later time.

If a period of holiday leave is changed into a period of sick leave, the normal rules apply when it comes to the duty to inform the employer of any sick leave as soon as possible. The worker still has to submit a medical certificate and the employer still has the right to appoint a medical doctor to verify whether the worker is genuinely ill. It goes without saying that practical difficulties can arise if the worker falls ill when on holiday leave abroad.

The Royal Decree of 8 February 2023 applies for holiday leave in relation to service year 2023. The first days that can be transferred to the subsequent year are the holiday leave that should normally be taken in 2024.

 

Brussels Employment Appeal Tribunal clarifies cumulation of specific protections against dismissal

Under Belgian law there are several protections against dismissal. Each stipulates a duty to pay a protection indemnity (generally three or six months’ pay) on top of the normal notice period or indemnity in lieu of notice. This is unless all conditions of the specific protection against dismissal were complied with. Increasingly, the situation occurs when a terminated worker can use several specific protections against dismissal. So can the worker cumulate the protection indemnities of the applicable specific protection indemnities?

The Employment Appeal Tribunal of Brussels dealt in a judgement of 21 December 2022 with a case with these specific protections:

• The employee had taken birth leave (paternity leave), claiming a protection indemnity of three months on this basis.
• The employee worked in a bank. The collective bargaining agreement concerning job security signed within the joint committee for banks applied, so the worker claimed three months on that basis.
• The employee said his termination was manifestly unreasonable in relation to collective bargaining agreement n° 109. He claimed 17 weeks’ pay on that basis.

The bank admitted it failed to follow the procedure stipulated in the collective bargaining agreement concerning job security of the joint committee for banks. The employee’s hearing before the dismissal did not take place. The bank acknowledged the three-month protection indemnity on this basis was due and had effectively paid this indemnity.

When it comes to protection related to birth leave, it was clear the bank could not prove the reasons for the termination indemnity were unrelated to the birth leave. But the bank argued it had already paid a protection indemnity of three months' pay (labelling it as the protection indemnity under the job security CBA for banks). And the collective bargaining agreement concerning job security of the banks expressly states the protection indemnity cannot be cumulated with “any other legal or conventional protection indemnity.” The article in the 1978 Act on Employment Contracts concerning birth leave also stipulates that the protection indemnity concerning birth leave cannot be cumulated with “any other legal or conventional protection indemnity.” According to the bank, the worker could not claim a second three-month indemnity on the basis of the birth leave.

The Employment Appeal Tribunal pointed out that both protections are not 100% the same. The CBA for banks stipulates a procedure to be followed before dismissal. The protection concerning birth leave requires the reasons for the termination to be unrelated to the paternity leave. The Employment Appeal Tribunal concluded that both protections pursue the same objective, so the protection indemnities cannot be cumulated.

For claims alleging a manifestly unreasonable dismissal related to collective bargaining agreement n° 109, the Employment Appeal Tribunal pointed out that the agreement stipulates in article 2 it does not apply to dismissals “for which the employer must follow a specific dismissal procedure regulated by legislation or by a collective bargaining agreement.” The comments on this article specify that this for instance covers the staff representatives in the sense of the Act of 19 March 1991 or the prevention advisors. The Employment Appeal Tribunal pointed out that these are only examples, and that the collective bargaining agreement of the joint committee for banks requires a specific procedure to be followed before dismissal. This procedure pursues the same aim as collective bargaining agreement n° 109, as it obliges the employer to specify the reasons for termination.

The claim based on the collective bargaining agreement n° 109 was considered unfounded, as the Employment Appeal Tribunal considered collective bargaining agreement n° 109 was not applicable.

The Employment Tribunal concluded that only a protection indemnity of three months’ remuneration was due, not the claimed combination of three months in relation to birth leave, three months in relation to the CBA of the banking sector and 17 weeks under the collective bargaining agreement n° 109.

Finally, the issue to what extent protection indemnities can be cumulated also arises under discrimination law, but different rules apply in that case.