Be Aware May 2022

Withholding wages when employees damage company property: Reminder of the principles

Article 18 of the Act on employment contracts provides that, in the event of damage caused by an employee to the employer or to third parties in the performance of their contract, the employee is only liable for fraud, gross negligence or repeated slight negligence.

In a judgment of January 27, 2022, the Liège Employment Tribunal¹ recalled the scope of this provision, by considering the principles applicable when an employer claims reimbursement from an employee for damage caused to company property.

In the case at hand, an employee employed as a construction site driver was provided with a company car. The employer and the employee had entered into a car policy. While serving his notice period after resigning, the employee had a traffic accident in the performance of his work. He damaged the company car. The parties then signed an acknowledgement of debt in which the employee undertook to pay for the repairs to the vehicle. At the same time, the employer deducted an amount from the employee's wages to cover the repairs.

The employee contested this deduction.

The tribunal first looked at the car policy signed between the parties. With regard to accidents and damage caused to the vehicle during working hours, the policy stipulated that any damage caused in the context of an accident resulting from a "fault" on the part of the employee must be borne by the employee whenever the amount of the repairs is less than the deductible agreed with the insurance company.

The tribunal then examined whether this deduction was in accordance with the requirements of article 18 of the Act on employment contracts. According to the tribunal, no fraud, no gross negligence or no repeated slight negligence could be identified on the part of the employee in this case.

Moreover, the tribunal recalled the mandatory nature of article 18: the employee could not waive it before the end of his employment contract. The employment contract was still in effect at the time of the accident.

The tribunal considered that the provision of the car policy making the employee liable for damage below a certain threshold value and setting aside the criteria of "gross negligence," "fraud" and "repeated slight negligence," to retain only the criterion of "fault," was illegal. The tribunal therefore decided to set aside this provision and granted the employee's request regarding wage withholding.

It’s interesting to note that the employer, having filed a counterclaim for payment by the employee of fines imposed when using the company vehicle, was successful on this point. The tribunal noted that the car policy expressly provided that fines for traffic violations were to be paid exclusively by the employee. Such a deduction is authorized by article 23 of the Act of April 12, 1965, concerning the protection of workers’ wages and salaries, so the employer was authorized to recover the amount of the fines from the employee's salary.

This decision illustrates the importance of drafting a car policy, provided that it complies with the mandatory provisions.

Angela Broux and Frédérique Gillet

What are the holiday entitlements for temporary agency workers?

As the summer holiday period approaches, the judgment by the Court of Justice dated May 15, 2022, in case C-426/20 is perhaps a good opportunity to bring up the question of holiday entitlements for temporary agency workers.

The case is a preliminary ruling concerning Portugal. Under Portuguese law, temporary agency workers were apparently entitled to less holiday leave and to less holiday pay than “normal” workers. The Braga District Court requested a preliminary ruling by the Court of Justice on whether these provisions of Portuguese law meet the requirements of Directive 2008/104 of the European Parliament and of the Council of November 19, 2008, on temporary agency work. Article 5 of this Directive stipulates that the basic working conditions of temporary agency workers must be at least those that would apply if they had been recruited directly by the undertaking in the same role.

According to the Court of Justice, this principle of equal treatment prohibits national legislation that would grant temporary agency workers less holiday leave or less holiday pay compared to workers employed directly by the company.

This judgement will have a limited impact on Belgium.

Belgian legislation on holiday leave does not include any specific rules for temporary agency workers, so they accrue statutory holiday leave and holiday pay in the same way as comparable workers recruited directly by the company they are working for.

Temporary agency workers are normally employed under short-term contracts. While the same rules apply to temporary agency workers, they often do not take holiday leave, as in most cases their employment contract with the temporary agency comes to an end before they can take holiday leave. In most cases, holiday entitlements of temporary agency workers therefore take the form of a payment, rather than leave actually taken.

For blue-collar workers, whether they are temporary agency workers or permanent workers, a change of employer has little effect on their holiday entitlements, as holiday pay is paid through a paid leave fund, and not directly by the employer to the worker.

Article 10 of the Belgian Act of July 24, 1987, on temporary work, temporary agency work and hiring out of workers for the benefit of users stipulates that temp agency workers should be granted at least the same remuneration as permanent workers recruited under the same conditions.

While there are no issues for statutory holiday leave, companies should bear this principle in mind for all elements of remuneration, including extra days of paid leave, granted on top of the statutory leave. The principle of equal treatment allows imposing conditions, for instance by stipulating that a benefit only applies to workers with at least one year’s service in the company. In that case, both temporary agency workers and permanent workers who have not yet reached this threshold are not entitled to that particular benefit.

We should bear in mind that some temporary agency workers might meet a condition regarding the length of service. The cases where temp agency workers can be used are in principle short-term cases, but the replacement of a fixed-term worker means a temp agency worker can be used with no maximum (other than the absence of the worker to be replaced), and the same temp agency worker could take up several short-term jobs (for instance, in several departments of a company, with each role lasting three months).

Frederic Brasseur

DLA Piper employment publications of recent months

• Kan het niet-correct dragen van een mondmasker een ontslag om dringende reden rechtvaardigen?
  In HR Magazine, by Jascha Kolesnyk

¹ Employment Tribunal (Liège division), January 27, 2022, General Cause List 18/3.571/A, www.terralaboris.be