Chamber approves Belgian transposition of Directive on work-life balance for parents and carers

Background and objectives of the Directive

In June 2019, Directive (EU) no. 2019/1158 on work-life balance for parents and carers (‘the Directive’) was adopted by the European Parliament.

The Directive seeks to ensure gender equality with respect to labour market opportunities and treatment at work. It also aims to increase women’s participation in the labour market and to achieve a better sharing of caring responsibilities between men and women. To this end, the Directive provides for minimal individual rights regarding paternity leave, parental leave and carer’s leave, as well as flexible working arrangements for workers who are parents or carers.

Additional protection against dismissal or non-renewal of a fixed-term contract

If employees make use of maternity leave, birth leave, adoption leave, parental leave, the new carers’ leave (also see below) or career interruption to care for or medically support a family or household member, they are protected against dismissal. This means that the employer can only terminate the employment agreement for reasons unrelated to them having taken up leave. The duration of this protection against dismissal varies slightly between the different types of leave, but usually starts once the employee communicates their intention to take up leave, to terminate some time after the end of the period of leave. Non compliance by the employer will result in an indemnity equal to 6 months salary being due. The transposition act expands on this protection by introducing that – if the employer terminates the employment agreement after the protected period, but the preparatory works for the dismissal already took place during this period ﹘this will be considered a dismissal during the protected period. As such, the employer will have to be able to demonstrate that the dismissal took place for reasons unrelated to the fact that the employee took up a type of family-friendly leave.

For maternity leave, birth leave and adoption leave, the transposition act also introduces a protection against non-renewal of an employment agreement for temporary work or fixed duration. In this respect, a legal presumption is introduced; if an employer doesn’t renew the fixed-term contract of an employee that communicated their intention to take up maternity leave, birth leave or adoption leave, this will be presumed to be done for that very reason. The employer is able to refute this presumption by demonstrating that the non-renewal is for unrelated reasons. However, if the employer is unable to so demonstrate, an indemnity equal to 3 months salary will be due. Note that, in the application of this protection to temporary employment agency workers, the user is to be considered as the employer.

New flexible working arrangement

Next to the carers’ leave, the transposition act contains the possibility for employees to request a flexible working arrangement to take care of kids or family members. Note that the set of rules adopted in the transposition act is not applicable to employees and employers that fall within the field of application of a collective bargaining agreement (‘CBA’) on flexible working arrangements, concluded within the National Labour Council. On 27 September 2022, the National Labour Council concluded such CBA – CBA no. 162 – which differs slightly from the system described in the transposition act. Below, we’ll discuss the system as adopted in CBA no. 162, which will be applicable to employers in the private sector.

An employee with at least six months seniority with their employer will be entitled to request a flexible working arrangement for a (renewable) maximum period of 12 months to:

• care for their own or their partner’s child, adoptive child or long-term foster child until the age of 12 or;

• care for or support a family member or member of their household that, due to medical reasons, requires considerable care (which must be evidenced by a medical certificate).

The notion ‘flexible working arrangement’ refers to an adjustment of the employee’s existing work pattern in terms of remote working, their work schedule or a reduction in working time.

The employee redirects their request in writing to the employer at least three months in advance. The employer has to reply, in writing, within one month and can either grant the employee’s request, deny it, defer the flexible working arrangement put forward by the employee or propose changes to it. Except when the employee’s request is granted, the employer’s response must be duly motivated.

After the end of the flexible working arrangement, the employee is entitled to resume their original work pattern. CBA no. 162 also provides for legal protection against adverse treatment, dismissal and non-renewal of a fixed-term contract, similar to the protection detail above for inter alia maternity leave, but with some notable differences. For example, if an employee deems that the reason for the non-renewal of their contract is related to them requesting a flexible working arrangement, they will have to prove this instead of the other way around, as is the case with e.g. maternity leave.

Entry into force

The provisions of the transposition act will enter into force on the 10th day following the publication of the act in the Belgian Official Gazette.

Conclusion

The transposition of Directive (EU) no. 2019/1158 on work-life balance for parents and carers into Belgian law brings about several changes to the Belgian types of family-friendly leave and introduces new possibilities for workers to more flexibly combine their work with caring for their loved ones. Going forward, employers will have to take these changes into account. If you’re looking for more guidance on how this transposition will affect your company, don't hesitate to get in touch: we’d love to hear from you.