Right to disconnect and other upcoming new employment law measures
In recent months, discussions have been ongoing regarding the so-called “labor deal” in Belgium, which will entail various changes to Belgian employment law. Can employees insist on a four-day working week? Are employees entitled to a “right to disconnect” after working hours? On Thursday 29 September 2022, the federal parliament officially approved the draft law implementing the labor deal (thereby addressing such questions).
Overview of the key topics
(i) Request for a four-day working week
The draft law provides for the possibility to work four days per week instead of five, without increasing the total weekly working time. There will be no absolute right to claim such four-day working week, which is subject to approval and formalities: the company (in general) will first need to include the relevant working schedules in their working regulations (“arbeidsreglement” in Dutch / “règlement de travail” in French) and subsequently (on an individual level), it will need to accept the employee’s request thereto. This request should relate to a maximum period of six months, although it is renewable at request, and it can be rejected on a duly motivated basis.
(ii) Alternating working schedules
The draft law also provides for the possibility to work alternating working schedules in successive two-week cycles, with more hours being consistently worked in one week and fewer hours in the other. This new measure could be useful for co-parenting employees, for example.
The same specific formalities apply as set forth above regarding the four-day working week (see (i)).
(iii) Right to “disconnect”
The draft law also introduces a right to disconnect or “to be offline” in companies that employ more than twenty employees, as of 1 January 2023. In short, this right implies that employees do not need to be online or read their professional emails and other messages outside of regular working hours.
To this end, an arrangement must be made regarding (among other things) the practical modalities that guarantee the right to disconnect within each employing company concerned, either through a company-level collective bargaining agreement (CBA) or (in the absence thereof) the working regulations to be filed with the Ministry of Employment before 1 January 2023.
If a national or business sector CBA is entered into, the obligation for the employer to conclude a company-level CBA or to include provisions in the working regulations will no longer apply.
(iv) Notification period in the case of variable working schedule.
As a fourth measure, the draft law introduces an obligation to notify employees working variable working schedules of their working schedule seven business days in advance, instead of the current five days (subject to potential exceptions).
The employers concerned must amend their working regulations within nine months following the entry into effect of this new notification period.
(v) Increased right to training days
The right to training will also be reformed as follows for companies employing more than ten employees:
- In companies that employ ten to twenty employees, employees will be entitled to one training day per year, prorated to their percentage of employment. The right will be outlined further either by a business sector CBA (which may also increase the number of training days) or by an “individual training account”.
- In companies that employ more than twenty employees, employees will be entitled to four training days in 2023 and five training days as of 2024, prorated to their percentage of employment. The right will be outlined further either by a business sector CBA (which may also change the number of training days without going below two days) or by an “individual training account”. Furthermore, an internal training policy must be provided to employees by the employer. The content and conditions of such company policies can be further outlined by a sectoral CBA. However, this CBA must be filed no later than on 30 September of the year preceding the year in which the conditions of the company policy must be applied. For the year 2023, this deadline has exceptionally been set at 30 November 2022.
(vi) Transition project
Employers have been given the possibility to offer a “transition project” to employees performing a formal notice period. This allows the employer to put a dismissed employee “at the disposal” of a new employer (the “user”) during such notice period through the intervention of a temporary employment agency or a regional public employment service.
The original employer continues to pay the salary during the project phase. However, the user must partly compensate the original employer for the salary to be paid by the latter during the transition project.
At the end of the transition project, the user is obliged to employ the employee under an employment contract of indefinite term, subject to a financial penalty if no formal employment is offered. In addition, when the employee is subsequently hired by the user, the employee retains the seniority the employee obtained at their previous employer for the sole purposes of time credit and thematic leaves.
Note that this transitional project is only a possibility and not a formal obligation. The employee may refuse such a project without incurring any prejudicial consequences.
(vii) Introduction of “employability-promoting measures”
Finally, in order to make the labor market more fluid and dynamic, the draft law foresees “employability-promoting measures” for dismissed employees with a notice period (or corresponding indemnity in lieu of notice) of at least 30 weeks.
This notice period will be converted into a “dismissal package” consisting of two parts:
- The notice period (or indemnity in lieu of notice) will be two-thirds of the normally applicable notice period (or indemnity in lieu of notice), with a minimum of 26 weeks.
- For the remaining one-third, so-called “employability-promoting measures” will be put in place and financed by the social security contributions paid by the employer on the salary due during the remaining part of the notice period. The employee serving a notice period will be able to enjoy paid time off to follow additional training, coaching etc. On the other hand, the employee receiving an indemnity in lieu of notice will be required to be available for employability-promoting activities.
It will only be a matter of time before the official law text will be published in the Belgian Official Gazette, entering into effect ten days after its publication (subject to certain exceptions). We will provide further updates after the publication.
Legal source: Draft law implementing the labor deal.