Brussels HR Law Focus Newsletter No.2 2015

In this "HR Law Focus" newsletter we focus on employment litigation as well as salary amounts for immigration.

Our "HR Law Focus" newsletter is released each time we see new legislation or case law that we believe might be important for your business.

REMINDER: AMENDMENT OF RULES ON THE PREVENTION OF PSYCHOSOCIAL RISKS AT WORK

The provisions regarding violence, moral and sexual harassment at work as contained in the Act of 4 August 1996 on the well-being of workers have been amended by a new executive decree. The new rules entered into force on 1 September 2014. As a result of these rules, amendments to the work regulations needed to be implemented by 1 March 2015 at the latest. We elaborated on this new legislation extensively in our HR Law Focus lunch seminar of June 2014 and January 2015. 

A RECAP: WHAT HAS CHANGED? WHAT DO YOU NEED TO KNOW? 

The key points in the new rules are outlined below (non-exhaustive), followed by practical recommendations to employers.

1. Employers are required to identify psychosocial risks at work and to take measures to prevent them. Previously, the law only concerned risks of violence, moral and sexual harassment at work. Now, it covers all psychosocial risks at work, defined as the probability that one or more workers could sustain mental harm, which might also be accompanied by physical harm, related to the work organisation, the content of the work, the employment conditions, the living conditions at work and inter-personal relations in the workplace, on which the employer has an impact and that objectively entail a danger. This means that employers need to pay more attention to anxiety, burn-out, stress, sleep problems, hypertension, etc. under the new provisions. An analyses with the prevention adviser psychosocial risks (PAPA/CPAP – position to be appointed external (less than 50 workers) or internal to the company (as from 50 workers)) and the employees will have to be made to identify possible risks.
2. The notion of harassment has been extended to take into account more situations. Minor or non-abusive behaviour can now fall under moral harassment, as the repeated or cumulative nature of such behaviour has to be regarded as abusive.
3. The internal complaint procedure is opened up to all psychosocial risks at work. The collective procedure can - on demand of the Committee for prevention and protection at work- lead to a risk analysis of a specific employment situation. On an individual basis, formal and informal phases are provided for, called "informal psychosocial intervention" and "formal psychosocial intervention". If the worker opts for a formal intervention, they will no longer file a "substantiated complaint" but, rather, a "request for formal psychosocial intervention". Beyond these terminological modifications, other changes have been made to the procedure, one of the main ones being that the health and safety adviser psychosocial risks (PAPA/CPAP) now can refuse the worker's request for intervention if the situation they describe obviously does not entail psychosocial risks at work. Specific provisions are laid down for requests for formal psychosocial intervention due to acts of violence, moral or sexual harassment at work.
4. A few changes have been made regarding the person of confidence (the so-called vertrouwenspersoon/ personne de confiance); (i) as such he/she will only be active in the so-called informal phase of the procedure – he/she will not be able to receive a request for formal psychosocial intervention; (ii) there is also a new requirement for the employer to ensure that person of confidence has developed the necessary skills by taking special training and being under annual supervision. Training needs not be taken by persons of confidence appointed before 1 September 2014 provided certain conditions are met.
5. Protection against dismissal applies for workers claiming to be victims of violence, moral or sexual harassment at work. Major changes have nonetheless been made.It is still forbidden for employers to dismiss protected workers, but they should also now refrain from "prejudicial action" against them, both during and after the employment relationship, except for reasons having nothing to do with the request/complaint. Protection against dismissal has become "protection against reprisals". In addition, workers wanting to request formal psychosocial intervention for acts of violence, moral or sexual harassment at work will only be protected if their request is accepted by the 'PAPA/CPAP'; and workers filing a complaint for violence, moral or sexual harassment at work with the inspectorate, police or public prosecutor or in court will only be protected if the internal procedure has failed or if, even though it was followed, it did not put an end to the acts of violence, moral or sexual harassment (or it would not be appropriate given the seriousness of the facts).
6. Victims of violence, moral or sexual harassment at work can claim compensation equal to three months of gross salary (capped). The amount is increased to six months’ gross salary if the behaviour is associated with a form of discrimination, where the perpetrator is in a position of authority over the victim or because of the seriousness of the facts.

CONCLUSION: PRACTICAL RECOMMENDATION

Make sure you adapt your risk analysis and health and safety measures to all psychosocial risks. It is crucial for an employer to identify possible risk of psychosocial nature on the work floor. It is also crucial to implement a 'company prevention policy' with all the stakeholders. It is the role of the 'PAPA/CPAP' to assist the employer in this respect.

Do not forget to amend your work regulations (please consult us if you would like us to send you a proposal of amendment to the work regulations)! This is important because any failure to do so carries criminal penalties or official fines, and doing so will also limit the cases in which protection against reprisals applies automatically. Your work regulations should have been made compliant by 1 March 2015 at the latest. So no time to waste if you did not already do it!

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