Do employees have a right to “disconnect” after working hours? (Altius)

Author: Altius

Date of publication: June 2018

Following the implementation of a “droit à la déconnexion” in France in 2017, the Belgian legislature has recently adopted a legal framework that allows employees to arrange a better balance between their professional and private lives. The new legislation does not grant them a general “right to disconnect” after normal working hours, but grants them a right to address and discuss the issue.

Colleagues sending “urgent” e-mails at 11 pm or checking e-mails when on holiday… surveys have revealed that the majority of Belgian employees work during their free time, resulting in an increased risk of burn-out.

To guarantee a better work-life balance, each employer, since 9 April 2018, has been obliged to consult with the Health and Safety Committee about disconnecting and about the use of digital communication tools in this respect. Such consultation should take place “regularly” and whenever the employee representatives request discussing that topic, i.e. not only within fixed timeframes (e.g. every quarter or on an annual basis) but also if an employee raises the issue that, for instance, he or she receives too many urgent e-mails during weekends.

On the basis of the outcome of the discussions, the Health and Safety Committee can formulate proposals and/or issue advice to the employer. For instance, the Health and Safety Committee could propose that no urgent e-mails can be sent after 7 pm or during weekends, or that no one is obliged to answer an e-mail that is sent within that time period.

That being said, the ultimate decision regarding possible disconnecting modalities remains with the employer. The employer is not obliged to implement the Health and Safety Committee’s proposals. Consequently, employees do not have an automatic right to install an “out of working hours” message each time they leave the office.

Any arrangements resulting from such consultation with the Health and Safety Committee can be confirmed in the company’s work rules, in a collective bargaining agreement or, for example, in a policy, given that the latter is less formalistic.

In the absence of a Health and Safety Committee, this competence is exercised by the trade union delegation. If there is no trade union delegation established within the company, then consultation takes place directly with the employees.

More and more employers (also abroad) are concerned about the balance between employees’ professional and private lives and are taking measures, even beyond any legal obligation, such as Volkswagen in Germany. Some months ago in Belgium, Colruyt took measures so that certain employee categories can only log on to the mail server at the work place.

No outplacement in the case of medical inability

For dismissed employees who are entitled to the general outplacement system (i.e. from 30 weeks’ notice), but who prove with a medical certificate that their health does not allow them, in a permanent way, to participate in such outplacement, it will no longer be possible for the employer to deduct the outplacement cost (i.e. 4 weeks’ salary) from their indemnity in lieu of notice.

The Unified Employment Status Act introduced a general right to outplacement for dismissed employees who are entitled to a notice period or an indemnity in lieu of notice of at least 30 weeks.

In the case of a dismissal with payment of an indemnity in lieu of notice, the employer can reduce this indemnity with 4 weeks’ salary to compensate for the cost of the outplacement services. Since 2016, this deduction is independent of whether or not the employee makes use of the outplacement services.

In principle, if an employee has been ill for a long time at the time of his/her dismissal, he/she remains entitled to outplacement services, which he/she can take up at a later point in time, if need be. In such a case, the employer remains entitled to deduct 4 weeks’ salary from the indemnity in lieu of notice. However, in February 2018, the legislator introduced an exception to this rule. Indeed, if it is established at the time of dismissal that the employee will be medically unable, in a permanent way, to follow outplacement services (e.g. in the case of a terminal illness), then the employer is not obliged to offer these outplacement services. Alternatively, the employer may not deduct 4 weeks’ salary from the indemnity in lieu of notice.

The employee involved must demonstrate his/her situation by way of a medical certificate from his/her treating doctor within seven days following the day of notification of the dismissal. The employer can appoint a second doctor upon his/her own initiative. However, to date, it remains unclear: (i) which doctor can be appointed by the employer, given the fact that the control doctor (‘controlegeneesheer – médecin contrôle’) and the occupational doctor (‘arbeidsgeneesheer – médecin du travail’) do not have any capacity since the employee is no longer in service, and (ii) what needs to be done in the case of contradictory medical certificates.

Labour Court rules that the lasting consequences of cancer may constitute a disability: what now?

In a decision of 20 February 2018, the Labour Court of Brussels decided for the first time that the lasting consequences of cancer could be considered as a disability. This is important as, in such a case, the employer must make reasonable adjustments to accommodate the needs of the disabled employee, unless the employer can prove that such adjustments create a disproportionate burden.

Facts

A saleswoman in a clothing store was diagnosed with a certain form of cancer. After being unable to work for almost two years, the employee (informally) asked her employer to let her progressively resume work (with an adjustment of her working time), which was deemed possible by both her family doctor and the advising physician of the health insurance fund (‘ziekenfonds – mutuelle’).

The employer was not open to the idea of progressive work resumption, and less than two weeks later, it dismissed the employee for “lack of suitable work for the employee”. In its justification, the employer, who had replaced the employee, invoked the expansion of the tasks package, the web shop, new products and cash register programmes, which would require specific additional training, and the financial impossibility of keeping two persons employed for the same work.

The employee decided to challenge her dismissal before the Labour Court, invoking discrimination based on ‘disability’ (handicap) and the absence of making reasonable adjustments to accommodate this disability.

Disability and reasonable adjustments

The Labour Court of Brussels first analysed whether the type of cancer suffered by the employee could be considered as a disability within the meaning of the anti-discrimination legislation.

On the basis of this legislation, an employer can be found to be discriminating if it refuses to make reasonable adjustments for the benefit of a person with a disability. Reasonable adjustments means appropriate measures taken in a specific situation and as are necessary to enable a person with disabilities to have access to, participate in and progress in the labour market (e.g. the adaptation of buildings, patterns of work, division of tasks, etc.), unless such measures would impose a disproportionate burden on the person who would be required to take such measures, i.e. the employer.

Based on the broad ‘disability’ definition cited in the Court of Justice of the European Union’s case-law, the Labour Court decided that the consequences of the employee’s cancer could be qualified as a disability. In its judgment, the Court noted that the concept of ‘disability’ differs from that of ‘disease’, which precludes a simple assimilation of the two concepts. Nevertheless, a disease may constitute a disability if it relates to a state of health resulting from a curable or incurable illness diagnosed by a doctor and if it leads to a disability resulting, among other things, from physical, mental or psychological conditions which, in interaction with various thresholds, might prevent the persons concerned from participating fully, effectively and on an equal footing with other workers in the workplace, and if that disability has a long-term nature.

According to the Labour Court, the employee’s long-term condition prevented her from participating fully, effectively and on an equal footing with the company’s other employees. The Court argued that this finding was further confirmed by the employee’s request to progressively resume work.

Consequently, under the anti-discrimination legislation, the employee could expect reasonable adjustments, such as an adapted work rhythm or training to limit the negative consequences of her disability, without this placing too much of a burden on the employer.

However, in this case, the employer had not done so. Even worse, the employer had simply dismissed the employee. At the very least, according to the Court, the employer could have requested the intervention of the occupational physician, who could have proposed adapted working methods or adjustments to the workplace, or could have examined the possibility of adapted work.

Therefore, as the employer did not provide any evidence to demonstrate that the proposed system of progressive work resumption constituted an unreasonable burden, the Court considered that the dismissal constituted discrimination and ordered the employer to pay the employee an indemnity corresponding to 6 months’ remuneration.

Lessons for employers: can employers (still) dismiss an employee with cancer/the lasting consequences of cancer?

First, this ruling does not entail that cancer will always be considered as a disability.

Second, this ruling does not mean that dismissing an employee with cancer (or any other long-term illness) is no longer possible.

If the dismissal is not based on the disability, then there is no problem. The dismissal must then of course be justified on another ground (e.g. attitude, serious cause, etc.).

If the dismissal is related to the disability, then this case highlights the importance of effectively and thoroughly considering whether reasonable adjustments can be made to accommodate the employee’s disability, before making a decision to terminate the employment. The reason for dismissal must not be reduced to the mere fact that the employee is (or has been) ill or that the employer does not have suitable work at its disposal: if progressive work resumption is requested, then this should be addressed, unless it can be demonstrated that the adjustments constitute an unreasonable burden for the employer. What is considered “reasonable” depends on the circumstances (size of the company, nature of its activities, etc.) and, therefore, each individual case must be assessed on its own merits.

Consequences for the re-integration track

The dismissal that led to this ruling dates from before the introduction of the re-integration track. Such a re-integration track, which is organised through the occupational physician, is aimed at leading employees with long-term illness to temporary or permanently adapted work or other types of work.

If the occupational physician decides that the employee is temporarily or permanently incapable of performing his/her current function but is able to perform adapted or other work, then the employer must draw-up a re-integration plan in consultation with the occupational physician and with the employee.

The employer can decide not to draw-up a re-integration plan if it has the opinion that it is technically or objectively not possible to draft a re-integration plan or that doing so cannot reasonably be expected (which it must justify in a written report).

In light of this judgment, it is important to keep in mind that an employee who is permanently unable to perform the agreed work could be considered as an employee with a disability. Therefore, the employer will have to take into account the risk of discrimination when giving its reasons for not drafting a re-integration plan, i.e. it should do everything necessary to provide for reasonable adjustments (such as adapting the work schedule, adapting the division of work, etc.).

No extended protection for pregnant employees: they may be dismissed only on grounds justifying a collective lay-off

In the recent Porras case, the Court of Justice of the European Union (“CJEU”) had to rule on the question of whether or not a pregnant employee could be dismissed in the context of a collective lay-off solely on the basis of the grounds justifying the collective lay-off (i.e. economic or technical reasons) or if the employer should prove ‘other’ or ‘additional’ reasons for justifying the dismissal (e.g. the cancellation of the function). Quite surprisingly, the Advocate General advised the latter. Fortunately, the CJEU ruled otherwise. An employer can thus dismiss a pregnant employee in the context of a collective lay-off but is required to (i) set out in writing the reasons justifying the collective lay-off and (ii) inform the pregnant employee of the objective criteria chosen to identify the employees who will be affected by the dismissal.

Facts

On 9 January 2013, the Spanish company, Bankia, entered into consultations with its employees’ representatives with a view to carrying out a collective redundancy. The special negotiating body reached an agreement covering, among other things, the criteria to be taken into account in determining the employees who will be affected by the dismissal as well as the criteria for priority status for those being retained.

Following that agreement, Bankia notified on 13 November 2013, one of its employees, Ms. Porras, who was pregnant at the time, of her dismissal by letter.

The letter stated, among other things, that in the specific case of the province where she worked it was necessary to significantly reduce the workforce and that, as a result of the assessment process carried out in the undertaking during the consultation period, she had obtained a score that was among the lowest in the province.

The employee challenged her dismissal before the Spanish labour courts, who then referred the case to the CJEU.

The CJEU ruling

The CJEU’s ruling can be summarised as follows:

– A dismissal decision taken in the context of a collective lay-off falls within the exceptional cases not related to the condition of the pregnant employee. Therefore, the employer is allowed to dismiss a pregnant employee, an employee who has just given birth or is breastfeeding in the context of a collective lay-off without giving her any grounds other than those justifying the collective redundancy, provided that:

  • the employer gives substantiated grounds in writing for the dismissal;
  • the objective criteria chosen to identify the employees to be made redundant are cited; and
  • the dismissal of the person concerned is permitted under the relevant national legislation or practice.

– Employees who are pregnant, have just given birth, or are breastfeeding, do not have to be given, prior to that dismissal, priority status regarding either being retained or redeployed.

Do not risk a suspension of your M&A transaction: inform and consult your employee representatives in time and completely

In a recent summary proceedings injunction ruling, the president of the Brussels’ Labour Court of Appeal ruled that the sale of a restaurant could not be completed and any dismissal of restaurant employees triggering collective dismissal regulations could not take place for as long as the employee representatives were not appropriately informed and consulted about the sale. This ruling demonstrates the importance of respecting the information and consultation regulations in the context of the transfer of an undertaking. Failing to respect these regulations can potentially suspend and harm the entire transaction.

In the case of the transfer of an undertaking, the transferor and the transferee are obliged to inform and consult the employee representatives in ‘due time’ and in any case before the transfer. The information to be provided must be substantive and include, amongst other things: the date of the transfer, the economic, financial or technical reasons for the transfer, the legal, economic and social consequences of the transfer for the employees and the contemplated measures concerning the employees. If such measures concerning the employees are contemplated or there are likely to be repercussions for their employment prospects, then the employee representatives must also be consulted.

In this case, the employee representatives were only informed about the transfer by a letter dated the day before the transfer, and which they received after the transfer. Moreover, this letter only included the transferee’s name and indicated that the employment contracts would be transferred in line with CBA 32bis. The letter did not include any detailed information about the reasons of the transfer, and, more importantly, the consequences for the employees, nor were the employee representatives consulted regarding these consequences and the contemplated employment measures.

Consequently, the Labour Court of Appeal ruled that the transferor and the transferee had not respected their information and consultation obligations towards the employee representatives. Since there was a clear danger that the transfer would have consequences for the employment (at a certain stage, the employees were told that there would be dismissals), the Court suspended the transaction and ordered that the required information and consultation should take place first, for which it installed a specific time schedule. In addition, the Court stipulated that the restaurant could not proceed with any dismissals that would trigger collective dismissal regulations until the information and consultation procedure was completed.

According to the Court, the required information and consultation remained useful and urgent to protect the employees’ rights, even if the transfer has already taken place (as had happened here).

The Brussels’ Labour Court of Appeal’s recent ruling clearly shows that the information and consultation obligation in the context of a transfer of an undertaking is not a ‘mere formality’. The employees’ representatives are entitled to receiving the complete information on time. If not, the transferor and the transferee risk that their transaction will be suspended.

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