Be Aware January 2021

Bonus plan drafted in the wrong language: “à la carte” nullity or not?

Employers in Belgium must implement very strict – probably outdated – legislation on the use of languages in social relations. In Flanders, the Flemish Decree on Use of Languages stipulates that the language to be used in social relations between employers and employees, as well as the language of all documents intended for staff, shall be Dutch.

The penalty in case of non-compliance with this obligation is very severe, i.e., nullity of the documents drafted, or acts performed in the wrong language. However, the nullity sanction cannot harm the employee. If a document was drafted in the wrong language, according to certain case-law, the employee can still avail himself/herself of the provisions of the document in question that are beneficial to him/her and only invoke the nullity of the provisions that are detrimental to him/her.

In a recent case before the Brussels Labour Court, this argument was invoked by a dismissed employee in order to obtain payment of a bonus under a bonus plan drafted in English only. This bonus plan, drafted in English, included a presence condition according to which an employee is only entitled to a bonus if he or she is in service during the entire reference period of the plan. In the case at hand, the employee concerned had been dismissed before the end of the reference period and hence, no bonus was paid to her by the employer.

The employee availed herself of the nullity of the presence condition included in the bonus plan, on the grounds of violation of the Flemish Decree on Use of Languages and claimed payment of the bonus she would have received if the presence condition had been met.

However, the Brussels Labour Court rejected this claim and ruled that she cannot avail herself of the nullity penalty only to discard the presence condition included in the bonus plan, yet invoke the other provisions of that plan that are beneficial to her.

As a matter of fact, it would result in the protection offered to the employee i.e., not be harmed by the nullity – being converted into a way to enrich the employee, which would not have been possible if the plan had been drafted in Dutch. A clause must be considered as a whole, so that certain parts of the text that constitute a whole cannot be isolated from each other.

Therefore, the Labour Court ruled that the employee can invoke the nullity, but that, in that case, the nullity concerns the plan as a whole and not only the presence condition. Therefore, the employee cannot obtain benefits under the plan which the parties have never agreed upon (in the case at hand, payment of a bonus without meeting the presence condition).

It is a remarkable decision by the Labour Court, because at present, the majority of courts stick to the far-reaching application of the invalidity penalty in which the nullity can only be applied to the clauses of a document drafted in the wrong language that are detrimental to the employee, and the clauses that are beneficial to the employee can still be invoked. However, criticism on this strict application is rising from various angles and now also from the Brussels Labour Court.

DLA Piper Employment publications of recent months

• Mobiliteitsbudget en thuiswerk : verbazend goede vrienden? Le budget mobilité et le télétravail : accord parfait ?
  HR Magazine by Frederic Brasseur
• Het belang van een goed arbeidstijd-opvolgingssysteem voor werkgevers. L’importance d’un bon système de contrôle du temps de travail pour les employeur.
  HR Magazine by Pierre Dion