Be Aware – October 2024

Employees' professional training: Two new registration obligations for employers in Belgium

The Belgian government recently introduced two new registration obligations for employers in Belgium. One is the obligation to register professional trainings in the new federal learning account. And the other is the obligation to register the employer's training plan with the social inspection. While both obligations are to a certain extent linked, they're separate obligations included in different legislation, which could be confusing.

The Act of 3 October 2022, holding various provisions on employment sets out the rules on employers' training plans. The plan should present the employer's policy at the level of employees collectively. The trainings can either be formal trainings given by an external organisation or internal trainings given by a colleague. The obligation to draft a training plan applies to all employers with at least 20 employees. These employers have to draft an annual training plan by 31 March at the latest.

The works council (if there isn't one, the trade union delegation, if there's no trade union delegation, the employees themselves) should be provided with this plan to advise on it 15 days in advance, so the employer should draft the plan by 15 March at the latest. The plan should pay particular attention to trainings for employees aged at least 50, jobseekers who aren't nationals of an EU member state, and disabled workers.

Article 38 of the Act of 3 October 2022, stipulates the annual plan should be submitted to the Belgian government within one month following its entry into force. But the Royal Decree of 14 July 2024, stating how this should be done was only published in the Official Journal of 2 September 2024.

Registration should be done using the application form, which can also be used when registering a collective bargaining agreement or new work regulations.

The Royal Decree of 14 July 2024 emphasises that the training plan should concern the workforce as a collective group. It expressly states that if the plan includes personal data on individual employees, the employer should anonymise the personal data before registering the training plan.

The plans for 2023 and 2024 should be registered by 2 March 2025.

A completely separate obligation is to register trainings followed by individual employees in application of the Act of 20 October 2023, concerning the creation and the management of the federal learning account.

The Act of 3 October 2022 introduced a right of every employee to – in principle – five days of professional training per year (pro-rated for part-time employment). This right is not subject to any condition in relation to the number of employees the employer has.

The federal learning account was created to register all training days and make it possible to check if each employee has received the professional training they're entitled to.

Training should be registered in the quarter in which the training took place. The training institute can register a training on behalf of the employer.

The federal learning account entered into force on 1 April 2024. But then a draft Act was submitted to Parliament to postpone the entry into force of the federal learning account to 1 July 2025. While the parties of the four Members of Parliament who submitted the draft Act have a clear majority, the vote on the draft still needs to take place.

 

Long-term sick leave : waiting can turn against the employer

In case a worker is due to a medical condition unable to perform his or her function, the employment contract is under Belgian law merely suspended. Once the period of sick pay (in principle 30 days) lapsed, the employer is not obliged to pay any remuneration to a worker on sick leave, hence employers sometimes merely wait and see whether a worker on sick leave takes any initiative for resuming work. There is under Belgian law indeed no fixed maximum for the period in which an employment contract can be suspended due to sick leave.

A judgement rendered by the Employment Appeal Tribunal of Brussels on 25 March 2024 illustrates nevertheless that this strategy can turn out to work against the employer.

The worker involved joined the company in 1989. In 1992, a period of sick leave starts due to back problems. Notwithstanding surgery, the worker was never unable to resume work. Neither the employer nor the worker took any initiative for terminating the employment contract. As of 1996, the worker did even no longer send medical certificates, without the employer ever reacting to this absence of the required medical certificates.

In 2020, the employer realises the worker was never terminated, hence he has been on sick leave for not less than 28 years. The employer decided to send registered letters to the home of the worker insisting on the obligation to submit medical certificates confirming the expected duration of the sick leave. After three registered letters with the same content all return without being picked-up at the postal office, the employer considered the worker had impliedly terminated the employment contract by failing to justify his absence with the required medical certificates.

The worker contested having the intention to resign. He pointed out he did not react to the letters sent by the employer as a result of the fact he was in that period residing with a friend at the other side of the country, close to the hospital where he was treated, hence he never received those letters.

It is well established case law that constructive dismissal or resignation requires either a unilaterally imposed change to an essential element of the employment contract, or alternatively a violation of a duty under the employment contract combined with the intention to terminate the employment contract. In this case, no unilaterally imposed change to an essential element was at stake. The Employment Appeal Tribunal considered the worker had violated his duties under the employment contract by not informing the employer of his temporary address or following-up his mail at his official address. This violation did according to the Employment Appeal Tribunal, however, not show any intention to terminate the employment contract, but only resulted from the worker being surprised by the fact the employer in 2020 suddenly insisted on receiving medical certificates, notwithstanding tolerating the absence of medical certificates during 24 years.

As the employer wrongly invoked the worker would have terminated the employment contract, the Employment Appeal Tribunal concluded the employer owed the worker an indemnity in lieu of notice. Here, the long period of sick leave worked against the employer, as this indemnity in lieu of notice had to be calculated on the basis of a period of continuous employment starting back in 1989. The worker continued indeed to accrue a longer period of continuous employment during the 28 years of sick leave.

The worker also claimed manifestly unreasonable dismissal in the sense of the collective bargaining agreement no. 109, arguing the termination was not based on his conduct or the organisational requirements of the employer and that a normal reasonable employer would not have implemented this termination. On this point, the Employment Appeal Tribunal ruled in favour of the employer, concluding that the absence of any reply to the 3 registered letters was a valid reason for the termination linked to the conduct of the worker.

The worker did not claim the indemnity equalling 6 months due in case of a violation of the prohibition of discrimination on the basis of health, although this claim is often formulated in case of a termination during a period of sick leave. The Employment Appeal Tribunal did thus not have to examine discrimination law.