Employees are now legally protected against burn-out in Belgium

Since 1 September 2014, new laws have substantially increased the scope of protection for employees against professional risks at work, including the right to be protected against burn-out or nervous breakdown.

As a matter of principle, employers are obliged to take all necessary measures to prevent a variety of professional risks at work and to prevent damage resulting from these risks or, where this is not possible, to limit this damage. These risks were, until now, essentially limited to bullying, sexual harassment and violence at work. Under these new laws, these professional risks have been extended to cover a number of other risks, such as the risk of burn-out. These risks are collectively referred to as “psycho-social risks at work”.

The psycho-social risks cover the scenario where one or several employees suffers psychological damage, which may or may not be accompanied by physical damage, as a result of the employer’s organisation, content of the employee’s work, his/her working conditions, way of life at work and/or interpersonal relationships at work on which the employer has an impact. From the perspective of an objective person, the risk has to be a danger to the employee.

‘Psychological damage’ includes stress, anxiety and nervous breakdowns. ‘Physical damage’ may include sleeping problems, hypertension, heart palpitations and stomach problems. These damages have a cost for the company: industrial injuries, absenteeism management, poor quality of the work, decrease of the productivity, etc.

• Risks screening
Since 1 September 2014, not only are employers legally bound to carry out a general risks screening (to identify employment situations which may generate psycho-social risks at work) on a collective basis but they must also perform such risks screening for any specific employment situation where danger is reasonably foreseeable.

• Options for the employees?
An employee who believes that they are suffering from psychological and/or physical damage resulting from psycho-social risks at work may bring a claim internally either via an informal procedure (i) or via a formal procedure (ii). The employee in distress may raise these issues with the Psycho-Social Prevention Advisor or the Person of Trust in the company.

• Protection against dismissal
Any employee who initiates the formal procedure for acts of bullying, sexual harassment or violence at work, brings a law suit or is a witness for acts of bullying, sexual harassment or violence at work before the Labour courts is protected against dismissal.
The employer may not terminate the employment nor take any adverse action in the course of the employment for up to 12 months after the formal procedure has been initiated, unless the reasons for termination are unconnected to the employee’s claim. Non-compliance leads to the liability to a lump indemnity of 6 months’ salary.

• Practical tips
Companies must reflect these new obligations in their work regulations before 1 March 2015, by detailing:
o the details and duties of the psycho-social prevention advisor and the person of trust;
o the procedures directly accessible to the employees internally.

Sexism in employment relationship is now officially sanctioned

The anti-discrimination law sanctions sexism in employment relationships since August 2014.

• What is sexism?
Sexism is defined as any gesture or behaviour which, under the circumstances detailed under article 444 of the Criminal Code, has the purpose or effect of degrading someone, due to his/her gender or where someone treats a person less favourably because of their gender leading to a severe loss of dignity by the victim.

This includes acts perpetrated during meetings or in public places, in the presence of several individuals whether intentionally or otherwise, in any place whatsoever in presence of the offended person and in front of witnesses, in writing (whether printed or not), displayed images, sold or exposed to the public eye and even in writing where such writing has not been displayed in public but has been addressed or communicated to several persons.

• Sanctions

Anyone who discriminates against someone in the employment relationship due to their gender faces imprisonment (1 month up to 1 year) and a fine (50 to 1,000€) or only one of these sanctions.

For further information on any of these developments, please do not hesitate to call your usual OC Contact or email:
thierry.vierin@osborneclarke.com.