In my practice, I have found that employers when in conflict with their employees, and who have made the decision to dismiss them, have sometimes taken quite some time before actually terminating the employee’s contract.

This relative slowness between the time that the decision to dismiss is made, and its actual notification to the employee can sometimes be costly for the employer.

Indeed, in certain specific situations, the informed employee, foreseeing a dismissal, can use the conflict or the difference of opinion with his employer to invoke facts of moral harassment at work.

They can then turn to the external prevention advisor, normally designated in the company’s work regulations, and submit a formal intervention request for acts of moral harassment, which is then notified to the employer.

As soon as such a request is made, the employee benefits from protection against dismissal in accordance with Article 32tredecies of the Act of 4 August 1996 on the welfare of workers.

Although it is always possible to dismiss the employee after filing the formal request for intervention, the employer must, in this case, demonstrate that the dismissal took place for reasons unrelated to the complaint, which is not easy since, in this kind of situation, doubt is often present.

If the employer is unable to prove that there is no link between the dismissal and the complaint, they are then required to pay their employee compensation equivalent to six months’ remuneration.

The legislator wanted to protect the employee against “retaliation” dismissal, that which occurs in response to the worker’s complaint. The law here is well meaning and placed, and its application in many situations makes it possible to come to the aid of employees in distress.

However, in practice, this legal mechanism can give rise to certain abuses, which are difficult to sanction.

Indeed, although article 6.7 ° of the law of 4 August 1996 relating to the well-being of workers punishes “any abusive use of procedures”, it should be noted that protection against dismissal does not depend on whether or not the worker’s complaint is founded.

Likewise, the employee’s inability to prove the facts they invoke in support of their complaint (even not constituting harassment) does not constitute abuse either.

In principle, all foreign employees who are not nationals of a country from the European Economic Area and who intend to work in Belgium need to have a single permit (for both work and residence) that is issued by the competent Belgian regional authority.

To hire a foreign worker, the employer will have to apply for employment authorization and a single permit for that particular foreign worker.

Most of the time, employment authorization is issued only when there are not enough qualified workers on the Belgian labor market to do the job in a satisfactory way within a reasonable period of time.

This condition is generally very difficult to prove. However, in some exceptional cases, the employer does not have to prove such a condition.

There are indeed a number of exceptions to that rule, the most relevant exceptions being :

I. Employing “highly qualified” staff

Highly qualified employees can be defined as those with a higher education diploma, provided that their gross annual remuneration exceeds EUR 44.097 for 2022 and 47.174 for 2023

Since September 10, 2012, a “highly qualified worker” may also be entitled to apply for a European Blue Card. Several conditions must be fulfilled for this, including a minimum annual gross salary of EUR 57.019 for 2022 and 60.998 euros for 2023.

II. Employing managerial staff

The employer can also hire a person for a managerial position if the gross annual remuneration of this prospective employee will be more than EUR 73.570 for 2022 and 78.704 EUR for 2023.

In both cases:

• the annual gross salary is calculated the same way as how the indemnity in lieu of notice is calculated. Hence, it includes the basic monthly salary, the end-of-year premium (thirteenth month), the double holiday pay, the variable pay (including holiday pay on it), and all benefits in kind including, but not limited to, meal vouchers, the value of the private use of the company car, and employer contributions to insurance policies.
• The employer (with the help of a lawyer if need be)—and not the prospective worker—must apply for the single permit. If the employer is established abroad, the latter must apply through a local representative such as a Belgian lawyer.

 

Provisional Seizure of Bank Accounts without Judicial Authorization

It is possible to block all of your debtor’s bank accounts without prior authorization from the enforcement judge if certain conditions are met. These conditions relate to the nature of the debt and the debtor’s situation.

Conditions for Provisional Seizure

• Certain debt: undisputed invoice or not seriously contestable
• Liquid debt: assessable in money, such as an invoice
• Due debt: invoice payment deadline exceeded
• Debt recovery in peril: risk of insolvency or difficulty recovering the debt

Procedure and Contestation of Provisional Seizure

The debtor may contest the provisional seizure by initiating a judicial procedure before the enforcement judge. The seized funds remain blocked by the bank until the judge renders a decision.

Strategic Use of Provisional Seizure

• Paralyze the debtor’s operations
• Encourage the debtor to voluntarily pay the invoice
• Reach an amicable settlement in exchange for lifting the seizure

Optimization of Costs and Practical Considerations

If you plan to carry out a provisional seizure with several banks in the same judicial district, you can optimize costs. However, banking secrecy prevents knowing the account balances before the seizure.

Risks Associated with Provisional Seizure

The decision to seize must be made with sufficient discernment, as provisional seizure carries risks. If the debtor proves that the debt is not certain, they may obtain the lifting of the seizure and your condemnation to legal costs.

Liability for Reckless and Vexatious Seizure

Furthermore, carrying out a seizure carelessly or with malicious intent may result in paying damages, the amount of which will be determined by the seizure judge.

While it may seem like common sense, in our practice we have noticed that a lot of employers do not follow these rules.

• Record of Employee Performance

Employers should have written records of the employee’s shortcomings or of inadequate behavior in general. Employers should thus send at least an e-mail or letter to confirm their conversations when such topics are discussed with employees. In addition, evaluations should be conducted with care. Evaluation forms should contain the actual assessment of the employment and should thus mention negative aspects when there are any. Managers usually want to avoid any conflict and are often too positive in making and filling out the evaluations.

In practice, employers tend to complain about an employee’s behavior when the time comes for dismissal, but there is usually no written record to confirm such reason for dismissal. Even evaluations do not contain or refer to shortcomings that have been discussed with employees in the past.

• Conduct to Avoid

Employers need to be very careful when it comes to the dismissal of an employee, as a mistake made in the course of the dismissal process may become costly. These are examples of conducts to avoid:

• Informing employees about the dismissal decision by SMS or WhatsApp;
• Dismissing employees for gross misconduct (motif grave), without notice or compensation, and where the behavior concerned cannot reasonably be considered as gross misconduct;
• Publishing the revocation of a director’s mandate bound by a labor agreement in the Belgian Official Gazette by specifying that this agreement was terminated for gross misconduct;
• Dismissing employees without verifying if employees are protected against dismissal;
• Dismissing employees who are entitled to an outplacement without proposing them an outplacement formula;
• Dismissing employees without being able to provide reasons for the dismissal, and to establish these reasons with supportive documents.

Managers are usually attentive when it comes to corporate branding, but they are often not well prepared for conversations concerning dismissals and are not necessarily aware of all the provisions of employment law, which are complex.

This lack of expertise or preparation could cause damage to the company’s brand or reputation, or to the foreign state’s image toward the host state in case the employer is an embassy. It is therefore recommended to be advised by a lawyer from the very beginning of the dismissal process.