Be Aware - September 2024

What can employers do when an employee performs other activities during sick leave?

Employers might sometimes find out that an employee on sick leave is actually working in a second job or performing activities raising doubt as to the reality of their illness. A judgement from the Employment Appeal Tribunal of Liège on 21 May 2024 illustrates that it can be dangerous for an employer to react prematurely in such cases.

The case concerned an employee who was head of the maintenance department in a pharmaceutical company and who was on sick leave for more than four months. The employer heard from colleagues that the employee had bought a new house and was actually working on the new house.

The employer knew the address of the new house, so it instructed a detective to visit the street on a random morning. When the detective saw the employee arrive in working clothes and with tools, he contacted a bailiff. From the street the bailiff could see the employee was working inside. And when the bailiff rang at the doorbell, the employee answered the door and confirmed he was working on his new home. The employer dismissed the employee for serious misconduct on the same day, arguing the construction work the employee was doing at his new home showed he was actually able to perform his function as head of maintenance.

Taking into account the bailiff's report, the Employment Appeal Tribunal established that the employee was working in his new home during a period of sick leave. But the Employment Appeal Tribunal referred to the existing case law stating that a dismissal for serious misconduct should always be assessed in the light of all factual elements. There is no misconduct that always justifies a dismissal for serious misconduct, as it depends on whether the employee can invoke mitigating factors.

Case law states that an employee should in principle not perform other activities during a period of sick leave. But if the employee does perform other activities, it doesn't necessarily justify dismissal for serious misconduct. When the other activities prove the employee was actually able to perform their work or when the other activities have a negative impact on the healing process, a dismissal due to serious misconduct is generally accepted.

In this case, the employee submitted a statement from his doctor confirming the sick leave at work was caused by burn-out and recommending the employer do at least some activities as part of the healing process. In the light of this statement, the Employment Appeal Tribunal concluded that performing construction work at his own home didn't prove the employee was actually able perform his function. The dismissal for serious misconduct was considered not justified and an indemnity in lieu of notice was granted.

The employee also claimed indemnity of six months' remuneration for the employer violating discrimination law. He argued there was a discrimination on the basis of health. The reason for the dismissal was clearly linked to the sick leave, as the employer terminated the employee on the basis of the argument he took sick leave while actually able to work. Since the Employment Appeal Tribunal already concluded that the construction work at his new home didn't necessarily mean the employee was able to perform his function as head of maintenance, the Employment Appeal Tribunal considered this claim was also founded.

 

Protection against dismissal for prevention advisors applies even if the employee is never formally appointed as prevention advisor

Prevention advisors have a specific protection against dismissal under the Act of 20 December 2002 concerning the protection of prevention advisors. This protection relates both to the termination of their employment contract and the termination of their capacity of prevention advisor. In a judgement of 28 May 2024, the Employment Appeal Tribunal of Brussels clarified a number of points on this specific protection against dismissal.

The case concerned an employee recruited by a company in the security sector. The employment contract merely mentioned "operational worker" as function, without giving any more detail. There was no reference to the capacity of prevention advisor in the employment contract. The employee had obtained a degree as prevention advisor level 2, and he could prove he performed some tasks inherent to the role of prevention advisor, for instance he drafted the report to be sent to the social inspection after a serious accident at work and he also prepared a risk analysis for some activities. But he was never formally approved as the new prevention advisor by the employer or by the committee for prevention and protection at work. The company concerned apparently had a poor compliance with health and safety law, as there was no annual report of or minutes of any meetings by the internal service for prevention and protection at work. The worker was dismissed with immediate effect and the employer paid an indemnity in lieu of notice without following a specific procedure before the dismissal.

The worker claimed the protection indemnity due under the Act of 20 December 2002 concerning the protection of prevention advisors. The employer contested this claim, arguing the Act didn't apply as the worker was never appointed as prevention advisor.

The Act of 20 December 2002 defines "prevention advisor" as a person "linked to an internal service for prevention and protection at work … and who performs the tasks stipulated by article 33 of the Act of 4 August 1996." Article 33 of the Act of 4 August 1996 concerning the wellbeing of employees during the performance of their work stipulates that every employer should have an internal service for prevention and protection at work, with at least one prevention advisor. In companies with less than 20 workers, the employer can take up the role of prevention advisor themself.

The specific protection against dismissal for prevention advisors applies thus if the employee handles at least some of the tasks of the prevention advisor, even if the employee was never validly appointed as prevention advisor. In companies with a committee for prevention and protection at work, the committee should approve the appointment as prevention advisor.

If the Act of 20 December 2002 applies and the employer plans to terminate a prevention advisor, the employer should first communicate the reasons for the termination and the evidence establishing those reasons by registered mail to the prevention advisor. A copy of this letter should be sent to the committee for prevention and protection at work. If all members of the committee agree with the termination, the employer can terminate the employment contract. The prevention advisor can still contest the reasons for the termination before the Employment Tribunal.

If there's no agreement within the committee for prevention and protection at work, the social inspection will try to find a solution. If no agreement is reached, the employer should seek authorisation from the Employment Tribunal before proceeding to the termination.

If a company has no committee for prevention and protection at work, the trade union delegation takes over this role. If there is also no trade union delegation, the procedure has to be followed with all workers of the company.

If the employer terminates the employment contract of a prevention advisor without following this procedure, it will have to pay a protection indemnity. This protection indemnity equals two years' remuneration if the employee has been prevention advisor for less than 15 years and three years remuneration if the employee has been a prevention advisor for at least 15 years.

This protection indemnity comes on top of the normal notice period or indemnity in lieu of notice.

In many companies, the role of prevention advisor is a part-time role. In that case, the protection indemnity should only be calculated on the basis of the remuneration for the time spent on the role of prevention advisor.

In the case at hand, the employer wrongly thought the Act of 20 December 2002 didn't apply so didn't follow the procedure for lifting the protection. The Employment Appeal Tribunal concluded the protection indemnity was due. It was clear the employee only worked part-time on the tasks of prevention advisor, but the employer contested the precise percentage of the working time. Normally, this is written in the annual report of the internal service for prevention and protection at work, but no report existed in this case. The Employment Appeal Tribunal estimated on the basis of fairness that the tasks as prevention advisor represented 30% of the total working time and granted the two years' protection indemnity calculated on the basis of 30% of the annual remuneration.

The protection indemnity under the Act of 20 December 2002 cannot be cumulated with other indemnities (besides the indemnity in lieu of notice). The employee also claimed 17 weeks' pay, arguing the dismissal was manifestly unreasonable in the sense of the collective bargaining agreement n° 109, but this claim was considered unfounded as the Employment Appeal Tribunal had already granted the protection indemnity under the Act of 20 December 2002.