Benelux Employment Update – September 2023

Belgian laws include specific rules for electronically signing employment contracts, but they are vague:

• They can be signed with e-ID.
• Other e-signatures are possible, but only if a “qualified electronic signature” (QES) pursuant to the European e-IDAS regulation is used, and e-copies are stored by a recognised electronic archiving service. The issue here however is that it’s not clear which authority should recognise the service.

These messy rules do not provide for much legal comfort for using e-signatures. It is therefore recommended to look at the European rules in this regard, which are binding in Belgium, and work with QES in the sense of the e-IDAS regulation. In doing so, risks regarding the authenticity of an e-signature become very remote, because the identity of the person using a QES can be easily traced.

In the Netherlands e-signatures are accepted as legitimate substitutes for written signatures. This acknowledgment stems from the 2014 eIDAS Regulation adopted by Dutch law.

This regulation classifies e-signatures into three categories: electronic, advanced, and qualified.

An e-signature can be something as simple as a handwritten signature on paper that you scan or write digitally to use in an email or letter.

An advanced e-signature must meet specific criteria ensuring its authenticity and secure linkage to the signer. Meanwhile, a qualified e-signature is an enhanced version of the advanced type, produced using specialized devices and certificates. Notably, in the EU, only a qualified e-signature is equated with a handwritten signature.

However, Dutch law is more flexible, treating even non-qualified e-signatures, as long as deemed sufficiently reliable for their purpose, with the same legal gravity as qualified ones.

In accordance with Regulation eIDAS n° 910/2014, three types of electronic signature need to be distinguished:

• Simple electronic signature (SES)
• Advanced electronic signature (AES)
• Qualified electronic signature (QES) provided by service providers listed on the EU Trusted List only

Article 1322-1 of the Luxembourg’s Civil Code defines an electronic signature as “a set of data, inseparably linked to the document, which guarantees its integrity.”

It is generally admitted that both the AES and the QES satisfy the requirements of article 1322-1 of the Luxembourg Civil Code and are equivalent to a wet-ink signature.

The validity of a SES is determined by the court on a case-by-case basis. If a SES does not convince the judge, it may be supplemented by other evidence to prove the identity of the signatory and their willingness to adhere to the deed signed.

A non-solicitation clause is aimed at preventing the employee from approaching or poaching employees and/or clients after leaving the company.

Unlike the non-compete clause, the non-solicitation clause is not regulated by law but can exist through the principle of contractual freedom. However, the judge could declare the clause invalid or even award compensation to the employee if they think there is an abuse of rights or that the compensation for breach of the clause is excessive.

In addition, as proof of poaching is not easy to provide (a presumption is not enough), valid evidence is required. For example, mere contact with a colleague will not be accepted to justify poaching.

It might be difficult to enforce this clause in practice, but it is recommended to include the clause in an employment contract as a deterrent.

A non-solicitation imposes restrictions on the employee’s activities after employment as it prevents the employee from engaging in business with the employer’s contacts or clients. It must meet the same requirements as a non-compete clause, requiring written mutual agreement between the employer and the employee. In a fixed-term employment agreement, a non-solicitation clause is only valid if it is deemed necessary due to significant business or service interests. This necessity should be explained in the clause.

Non-solicitation clauses may lose their force if they were established in an outdated employment agreement, referring to a period when the employee held a different position than their current role. Consequently, Dutch courts might deem the provisions of these restrictive covenants unenforceable. So it’s advisable in certain instances to re-agree these restrictive covenants.

The purpose of non-solicitation clauses is for the beneficiary of the clause to prevent one of its contractual partners from poaching its employees for a specified period of time.

Some non-solicitation clauses bind two companies, ie the actual employer and the potential future employer. The employee is not a party to such a clause.

Other non-solicitation clauses bind the employer and the employee, to prohibit an employee from soliciting their former employer’s clients, customers or employees for their own benefit.

Luxembourg courts have consistently held that non-solicitation clauses do not constitute non-competition clauses, even if they affect an employee. They are therefore not subject to the same formalities as the latter. Their form is free, subject to compliance with civil law rules.

The standard working time limits are 8 hours per day and 38 hours per week.

Working outside of these regular business hours is restricted by law (some employee categories are exempt from these restrictions, eg managers or sales representatives):

• Overtime is only allowed under strictly defined circumstances, and is expensive (overtime compensation, mostly combined with paid time off).
• Night work and work on public holidays and Sundays are generally prohibited (but the law provides for a long list of exceptions to this prohibition).
• There is a “right to disconnect” after business hours, whereby employees cannot be forced to respond to calls, messages or emails after their working hours, nor can they face adverse treatment for not responding.

To overcome these restrictions, employers may want to proactively look at implementing one of the flexible working regimes provided by law.

In the Netherlands, the Working Hours Act sets limits on working hours, which include a maximum of 12 hours per shift and 60 hours per week, and average of 55 hours per week over a 4-week period or 48 hours per week over a 16-week period.

Overtime is permissible within these limits, and whether an employee is legally obliged (and paid) to work overtime depends on agreements between parties, collective bargaining agreements, and reasonable expectations of both employer and employee.

Dutch law provides flexibility for employees who have been with their employer for at least 26 weeks. They have the right to request modifications to their employment agreements, which can involve changes in working hours, work location, or schedules for (ir)regular periods, and affecting their extent. Employers must respond within one month to the employee’s written request.

According to Luxembourg Labour Code, the regular working hours are 40 hours per week, ie 8 hours per day 5 days a week. Hours over these limits are to be considered as overtime.

Luxembourg law provides for specific flexible working options, such as:

• the system of compensatory derogations
• a working hours plan (POT)
• a flexitime system

If an employee works overtime, the maximum working time cannot exceed 10 hours per day, or 48 hours per week.

Overtime is in principle subject to notification or authorisation to the competent authorities and subject to conditions. It is generally compensated by extra time off, at a rate of one-and-a-half hours of time off owed for each hour of overtime worked or, under conditions, by the payment of the normal hourly wage increased by 40%.