Be Aware - September 2021

Can a health and safety officer who does not meet the training requirement to carry out their role be removed by force majeure?

The Act of 22 December 2002 on the protection of health and safety officers protects the health and safety officer in the event of termination of their employment contract and in the event of removal from their position as a health and safety officer. In the event of leave or of removal, a prior procedure must be adhered to, non-compliance will lead to payment of a protection indemnity.

In the context of this Act, it is useful to look at the judgment rendered by the Liège Labour Court on 13 March 2021 (J.T.T., 2021, p.268).

What were the facts?

An employee was hired to carry out the role of health and safety officer. Given the number of employees employed at the time (less than 200 employees), a training level III was sufficient. Following an increase in the number of employees, the required level switched to level II.

At a meeting of the Committee for Prevention and Protection at Work, it was decided that employee be removed from the role of health and safety officer (the latter regained full-time employment in the framework of a redefined position). Following this decision, the employee would no longer carry out the role of health and safety officer and a service contract would be signed with the external Department for Prevention and Protection at Work to have another health and safety officer who meets the training level requirements. After a few months (and so it seems following unsuccessful negotiations between parties concerning the termination of the employment contract), the employer decided to dismiss the employee through payment of an indemnity in lieu of notice. The employee brought legal action and claimed payment of a protection indemnity provided for by the Act of 22 December 2002. The employer invoked force majeure.

What did the Court say?

The Court referred to the principles of the Act of 22 December 2002 and in particular the applicable procedures not only in the event of termination of the employment contract, but also in the event of removal from the position of health and safety officer. The Court stressed that the public order nature of the protection provided for by the Act of 22 December 2002, and hence the impossibility for the health and safety officer to waive it, while also recalling that the provisions on the payment of the protection indemnity provided for by this Act are mandatory, the health and safety officer is only able to waive it after his removal or his departure (depending on the circumstances).

According to the Court, if there is incompetence on the part of a health and safety officer because he lacks the required training, removal is possible. But it can only take place subject to compliance with the procedural rules provided by the Act of 22 December 2002.  

Even if the Committee for Prevention and Protection at Work agreed to remove the health and safety officer, the formal procedures under the Act of 22 December 2002 was not complied with. According to the Court, resorting to the concept of force majeure does not make it possible to clear oneself of non-compliance with the required procedural rules and the protection indemnity is therefore due.

The removal of a health and safety officer who does not meet the legal requirements can only take place in strict compliance with the procedure provided for by the Act of 22 December 2002. Not having the legally required training does not constitute force majeure.

Frédérique Gillet

Platform workers: the European Parliament urges for strengthened social protection

In October 2020, the European Commission Work Programme 2021 announced a legislative initiative to improve the working conditions of platform workers by the end of this year¹. In this context, a two-stage consultation process took place in 2021 in which European social partners were invited to share their views on the subject. 

While the second stage of the consultation process closed on 15 September, the European Parliament has made its position very clear. On 16 September 2021, it adopted a resolution calling for strengthened rights for platform workers². The resolution, adopted by an overwhelming majority, specifically demands that platform workers benefit from the same level of social protection as non-platform workers doing a job of the “same category”.

The resolution further states that such strengthened protection should include the payment of social security contributions, health and safety obligations, and the right to engage in collective bargaining to negotiate fair working conditions.

This resolution follows a series of national court decisions ruling that platform workers should be regarded as employees rather than self-employed. Most recently, a Dutch court ruled that Uber drivers should be reclassified as employees. In February, a similar conclusion was reached by the UK Supreme Court and before that, by the French Cour de Cassation. 

The Commission’s legislative proposal has yet to be adopted, but it has already been stated that there is no intention of creating a third employment status (other than employee and self-employed) and that any legislative initiative would respect the national definition of “employee”³.

Angela Broux

¹ Commission Work Programme 2021, COM(2020), 19 October 2020 

² European Parliament resolution on fair working conditions, rights and social protection for platform workers – new forms of employment linked to digital development (2019/2186(INI)), 16 September 2021

³ Protecting people working through platforms: Commission launches second-stage consultation of social partners, Press release, 15 June 2021