Hire in Belgium

In Belgium, the standard type of employment contract is the open-ended (or indefinite) employment contract. This is considered default. Fixed term contracts are permitted. However, a written contract must be concluded before the commencement of any employment. Failure to adhere to this requirement will result in the fixed-term automatically being considered an indefinite contract. A fixed term contract is also deemed to exist if the employee continues to work following the completion of the fixed term contract without a valid extension being implemented.

As a general rule, an indefinite-term contract is considered to exist if, at the conclusion of a fixed-term contract, the parties immediately sign another fixed-term contract without a break,

However, there are several exceptions to this restriction on consecutive fixed-term contracts:

• An employer and employee can sign a series of up to four contracts of at least three months’ duration each without breaks. The combined length of the contracts must not exceed three years.
• If an employer receives authorization from the Labor Inspectorate, the employer and employee are allowed to sign a series of contracts of at least six months’ duration each without breaks. The combined length of the contracts must not exceed three years.
• Consecutive fixed-term contracts can be signed without a break if the employer can justify this practice due to the nature and type of work being completed (e.g. seasonal work) or other legitimate business reasons.

Both the employer and the employee can terminate a fixed-term contract before its intended end date for a “serious reason.” If such a reason does not exist, the guidelines on early termination are as follows:

• In the first half of the contract’s term, up to a maximum period of six months, either party can terminate the contract with notice. This notice will be the same as for an indefinite-term contract following the same length of service.
• If one party terminates the contract during the remainder of the contract’s term, it must pay the other party compensation equal to the remuneration due to the employee through the original scheduled end of the contract.

In principle, an employee’s working time is not to exceed eight hours per day and 38 hours per week. However, there are both permanent exceptions and one-off exceptions, which become valid when particular circumstances make additional work necessary.

Employees must generally be given an uninterrupted daily rest period of at least 11 hours in each 24-hour period. Employees are also entitled to a weekly day off, generally directly adjoining a daily rest period. This translates to granting a minimum weekly rest period of 35 hours. The general rule is that work on Sundays is prohibited, although some industries and types of business are exempt from this restriction.

There are also various long-term working time flexibility schemes which allow employees to work more than eight hours per day or 38 hours per week. However, in all circumstances, the maximum working time for any employee is 48 hours per week on average over the course of a reference period.

Generally, these regulations on normal and additional hours, working time flexibility, minimum hours, night work, rest breaks and rest periods (except the nearly ubiquitous prohibition of Sunday work) do not apply to senior managers. Other groups of workers that have their own adapted rules due to the nature of the work may also be excluded (e.g. home workers, air crew and medical staff).

Employees may apply to work full-time over four days without a salary cut. Depending on the number of hours worked each week by employees, the employer may implement this change by changing the Work Regulations or entering into a collective bargaining agreement.

There is no mandatory requirement for employers to offer bonuses. However, a 13th month salary payment may be required, depending on the CBA that is in effect.

It is a common practice to award a bonus to an employee when certain agreed qualitative or quantitative targets are met within an agreed reference period. This is typically offered monthly, quarterly or annually. The conditions of the award of the bonus and its calculation are usually determined in a formally written bonus plan. Employers may also provide for a collective bonus system for the benefit of their employees. This is usually linked to a number of predetermined company objectives.

However, an employer must maintain an objectively measurable system for determining which benefits are granted. Employers must always comply with Belgium’s anti-discrimination legislation.

Employees are entitled to double holiday pay that is paid out annually. Details can be found in the Annual Leave section.

Termination by the employer

In principle, an employer has the right to dismiss an employee at any time by offering the required notice or making a payment in lieu of the notice. However, the employer’s right to dismiss an employee with notice is restricted in several ways:

• A dismissal must not be discriminatory in nature.
• Certain employees receive special protection from dismissal at certain times (see below).
• Employers can also dismiss employees without notice for a “serious reason.” This practice is known as “dismissal without notice.”

An employer may be obliged to pay compensation if the employees’ dismissal was “manifestly unreasonable” or constitutes an “abuse of rights.”

Statement of reasons/manifestly unreasonable dismissal

Most terminated employees, with at least six-month service, are entitled to receive a written statement from the employer detailing the reasons for their termination. If the employer does not voluntarily provide the reasons for dismissal, the employee can request a statement in writing. The employer must respond within two months of receiving the request, providing sufficient details so the employee can understand the reasons for their termination.

Employees may thereafter claim that the dismissal was “manifestly unreasonable,” which means:

• the dismissal was for reasons unrelated to the conduct or aptitude of the employee or not based on the operational needs of the company, establishment or department
• a normal and reasonable employer would never have made the decision to terminate the employee.

Abuse of rights

Based on the civil law concept of “abuse of rights,” a terminated employee can claim the employer has abused its right to dismiss by exercising this right in a way that manifestly exceeds the right to a “prudent and diligent” employer. The abuse may lie in the reasons for the dismissal or the circumstances of the termination.

Dismissal without notice

An employer may dismiss an employee immediately without notice or payment in lieu due to a “serious reason” (dringende reden/motif grave). This involves misconduct on the part of the employee that immediately and definitively makes any further working relationship impossible. Examples of the kind of misconduct include: violence or threats at work, being drunk at work, sexual harassment, theft from the employer, being absent from work without permission/justification, competing with the employer or divulging confidential information.

The employer should notify the employee of the immediate termination within a period of three working days following the day the employer became aware of the serious reason triggering the termination. Furthermore, following the termination notification, the employer must notify the employee of the reason within a period of three working days.

Resignation

Employees may resign at any time by giving the employer the applicable notice period. They can also resign immediately, without notice, in the event of a “serious reason.” This can include conduct on the employer’s part that immediately and definitively makes any further working relationship impossible.

Termination by mutual agreement

The employer and employee may mutually agree to terminate the employment relationship at any time. No specific regulations apply to this type of termination and the parties are free to agree whether or not the employee will be offered a compensation payment.

Collective dismissals

A collective dismissal is termination for reasons not central to any of the individual employee concerned (e.g. not on grounds of misconduct, inaptitude etc.), over a 60-day period of at least:

• 10 employees in companies with 21–99 employees
• 10% of the employees in companies with 100–299 employees
• 30 employees in companies with 300 or more employees

A national collective agreement maintains that if an employer expects a collective dismissal, it must provide employee representatives with all relevant information and notify them in writing.

Certain groups of employees are protected against dismissal, meaning they may not be terminated on some grounds. For example, pregnant women may not be dismissed because of their pregnancy and employees who have filed a complaint for harassment cannot be dismissed for their complaint. Other types of employees cannot be dismissed unless for specific reasons provided by law, such as employee representatives in the works council.

Non-compete clauses:

Employment contracts may contain a contractual non-competition clause whereby, when the employee leaves his employer, they are prevented from carrying out similar activities. These activities can be restricted either on his or her own behalf or by entering into the employment of a competitor. A non-competition clause may be agreed upon if the annual gross remuneration of the employee exceeds a certain amount. In order to be valid, the standard non-competition clause must:

• be in writing
• relate to similar business activities
• be of a duration period not exceeding 12 months following the termination of the contract
• be geographically contained to Belgian territory
• must provide for the payment of a lump sum indemnity equivalent to at least 50% of the worker’s regular gross salary over the same time period

In cases where an employer carries out its activities in an international market, there may be the possibility to extend the geographic area to cover territory beyond Belgium.

Non-solicitation clauses:

Employment agreements in Belgium may include a non-solicitation clause, which is not regulated by any specific legislation. However, the employer must ensure this clause is not an abusive clause. It will be deemed an abusive clause if the benefit to the employer is considered to be disproportionate to the loss of opportunity for the employee. For example, in practice, former employees are allowed to approach employees of the former employer, as long as such actions cannot be judged as unfair competition (e.g. intended to harm the former employer).

In 2019, the European Court of Justice maintained that companies must implement a system for recording the working hours of their employees. Thus, employers are required to set up an objective, reliable and accessible system that enables them to track how much time each employee works.

Employees are entitled to paid annual leave of at least four weeks within each calendar year, provided they have worked full-time throughout the previous calendar year. The previous year serves as the reference year. CBAs in many industries increase an employee’s entitlement to paid leave.

Employees who did not work throughout the reference year, or worked part-time, will generally have their leave entitlement reduced pro rata.

A holiday schedule may be set by an applicable collective agreement or by the company council. Otherwise, the employee and employer agree on annual leave dates. Employees are generally entitled to take at least two weeks’ uninterrupted leave between 1 May and 31 October.

If an employee is prohibited from taking his or her leave due to certain conditions, the employee retains the right to take these days during the two-year period after the year in which he or she should have taken the holidays. Accidents, illness, maternity leave, adoption leave, prophylactic leave, or foster care leave are the conditions that allow for the transfer of leave days. Furthermore, even if these situations occur within the leave days, they cannot be attributed to the annual leave days.

During annual leave, employees are entitled to both “ordinary” and “double” holiday pay (vakantiegeld/ pécule de vacances). Double holiday pay is a supplementary amount of holiday pay. It is equivalent to 92% of the gross monthly salary of the employee. Employees who did not work full time during the preceding calendar year will receive 1/12th of that amount per month of work performed (or what is considered equivalent) in the preceding calendar year.

The double holiday pay is distributed annually, often in the month during which the employee takes his or her main holiday. However, in practice, many employers pay out the double holiday pay in the month of May, as it is more convenient for an employer to calculate the total double holiday pay across the entire workforce at the same time.

Employees who are absent from work due to an illness or injury are entitled to paid sick leave, which is to be paid by the employer. All white-collar employees with an indefinite-term contract or a fixed-term contract with a duration of at least three months are entitled to receive 100% of normal remuneration for the first 30 days of their absence.

In order to be entitled to paid sick leave, the employee must inform the employer of the absence as soon as possible. They must also supply a medical certificate if stipulated by an applicable CBA or the company’s work regulations. (Employees are not obliged to provide a medical certificate on their first day of absence due to incapacity. This option is only available to the employee three times each year. )

Following the 30 day period of the employer’s obligation to pay, employees who continue to be absent are generally entitled to a sickness benefit of 60% for the first year. As of the second year, they are entitled to an invalidity benefit of up to 65%. Entitlement will depend on circumstances.

Employees have the right to be absent from work without a loss of salary in the following circumstances:

• certain family events (marriage, funeral, childbirth, adoption, holy communion, etc.)
• for meeting civil duties (jury service, participation in the electoral process, etc.)
• appearance before a court

The reasons for and durations of such leave periods are outlined in legislation. However, more favorable provisions for employees may be determined at an industry or company level.

Other regulations allow for a variety of types of leave to provide care, deal with family affairs, address personal matters and perform public duties. Some examples are:

• Imperative Reasons Leave: Up to 10 days per calendar year are granted to deal with unforeseeable events unrelated to work (e.g., illness or hospitalization of a member of the employees’ household).
• Leave to care for a seriously ill family or household member is also granted. A provision exists for full-time leave; however, smaller companies may limit care leave to six months of full-time leave or 12 months of part-time leave due to operational reasons.
• Palliative Care: Employees are entitled to full-time leave for one month (renewable twice) or part time leave with reduced hours.
• Fostering Leave: Employees can be entitled to up to six days per calendar year.
• Educational Leave: Rules for educational leave vary depending on courses and regions where the employee works.

Although the above leave allowances are unpaid, the employee may be entitled to certain state benefits in many circumstances.

In addition, some employees (including those with over 24 months of service with their employer) have a right to take long periods of full-time or part-time unpaid leave under the provisions of a “time-credit” scheme (tijdskrediet/crédit-temps).

Maternal Leave

Female employees are required to take maternity leave from one week before the expected date of birth until nine weeks after the birth. An additional five weeks may be taken before or after the birth. They are also entitled to take a further five weeks of “optional” leave, in principle, before the birth. For multiple births, an additional two weeks are granted. In cases where the child must stay in the hospital for more than seven days after birth, the employee is entitled to increase her postnatal leave by as long as the child remains in the hospital. This leave cannot exceed 24 weeks.

During maternity leave, the employee’s contract is suspended. She has no statutory entitlement to be paid by the employer. Employees receive social security maternity benefits during the leave, including any postnatal rest days, if they meet certain conditions in terms of prior social security coverage and employment history. The benefit is:

• 82% of the employee’s normal earnings for the first 30 days of leave.
• 75% of normal earnings, up to a cap (€170.69 per day in 2023), for the remainder of the leave.

Partner/paternity leave

From January 1, 2023, an employee who becomes a father (or, in the case of non-heterosexual couples, the non-birthing parent, as long as the parents are married, in a legal cohabitation, or have lived together for at least 3 years) can take 20 days of paternity leave.

The leave can be taken by the employee during the days he chooses within the first 4 months after the birth.

During the first 3 days, the employee is paid by the employer. During the following 17 days, the employee receives benefits from his public health insurer (ziekenfonds / mutualité).

Parental leave

A working parent is entitled to four months of parental leave if they have at least 12 months of service with their employer (in total) during the previous 15 months. The entitlement is for the individual. Parents can take their leave together or at different times. The leave must be taken before the child turns 12. This can be extended to age 21 if the child has a disability.

An employee may take all the leave at once or take it in several separate periods of at least one month each. Alternatively, with the employer’s agreement, this can be taken several shorter periods. Full-time employees can also opt to take parental leave on a part-time basis over longer periods.

During parental leave, the employee’s contract is suspended. They have no statutory entitlement to receive a salary payment from the employer. However, employees are entitled to receive a benefit which is not earnings-related.

Adoption leave

All adoptive parents are entitled to adoption leave. If a child has two adoptive parents, each is entitled to the leave individually. The basic entitlement is six weeks of leave per adoptive parent. This leave is increased by two weeks per parent if more than one child is adopted simultaneously. There is also an additional entitlement of two weeks of leave per child. This may either be shared by both adoptive parents (in cases where a couple adopts) or taken by one parent. Employees must take adoption leave (both basic and the additional entitlement) in a single, uninterrupted period.

Training leave:

Full-time employees in a company with at least 20 employees are entitled to 5 days of paid training leave per year. For employers with at least 10 but fewer than 20 employees, this will be reduced to one training day per year per full-time employee. Employers with less than 10 employees are excluded.

Carer’s leave:

Employees are entitled to five days of unpaid leave every year to care for a seriously ill family member. These five days are to be deducted from the 10 days of unpaid leave for compelling reasons to which employees are entitled.