Workplace violence and harassment: protection scheme clarified

Clarifications have been made to the scheme of protection against dismissal and against any adverse measure applicable in case of workplace violence and harassment.

An Act of 07.04.2023, which will come into force on 01.06.2023, amends certain provisions of the Act of 4 August 1996 (on the well-being of workers in the performance of their work) in this respect.

Here is a brief overview.

Protected workers

Workers who, because of acts of violence or bullying in the workplace not linked to a discrimination criterion (age, current or future health status, sex, maternity, paternity, etc.), take the following steps are protected against dismissal and against any adverse measure:

• the worker who has submitted a request for formal psychosocial intervention at company level in accordance with procedures in force;
• the worker who has lodged a complaint with the Directorate of the Inspectorate of Well-being at Work and in which he/she request its intervention for one of the following reasons:
  • the employer has not assigned a prevention adviser specialised in the psychosocial hazards in the workplace;
  • the employer has not provided for compliant procedures;
  • the request for formal psychosocial intervention has not resulted in putting an end to the acts according to the worker;
  • the procedures have not been applied legally according to the worker;
• the worker who has lodged a complaint with the police services, the public prosecutor or the examining judge and in which he/she requests their intervention for one of the following reasons:
  • the employer has not assigned a prevention adviser specialised in the psychosocial hazards in the workplace;
  • the employer has not provided for compliant procedures;
  • the request for formal psychosocial intervention has not resulted in putting an end to the acts according to the worker;
  • the procedures have not been applied legally according to the worker;
  • the internal procedure is not appropriate in view of the seriousness of the acts of which he/she has been a victim; 
• the worker who brings proceedings before the court or on behalf of whom proceedings are brought before the court so as to ensure compliance with the regulations;
• the worker who gives evidence because he/she, in the context of the examination of the request for formal psychosocial intervention, notifies the prevention adviser in a signed and dated document of the acts which he/she has seen or heard himself/herself and that relate to the situation that is the subject of the request;
• the worker who gives evidence in court.

The intervening parties or the worker himself/herself, depending on the situation, inform the employer that the worker is protected (see "Final remarks").

Important note! The protection does not apply in the event of abuse of the procedures.

Content of the protection 

In the course of the protection period, the employer may not:

• terminate the employment relationship, or take any adverse measure after the termination of the employment relationship, for reasons related to the lodging or content of the request for formal psychosocial intervention for acts of violence or bullying in the workplace, the complaint, proceedings or testimony;
• take any adverse measure during the employment relationship for reasons related to the lodging or content of the request for formal psychosocial intervention for acts of violence or bullying in the workplace, the complaint, proceedings or testimony, unless it is a preventive measure taken to eliminate the danger, prevent or limit the damage and provided that it is proportional and reasonable.

Protection period and burden of proof

The burden of proof of the reasons and justifications lies with the employer:

• when the employment relationship was terminated or the measure was taken within 12 months following the time when the employer became aware or could reasonably have become aware of the lodging of the request for formal psychosocial intervention for acts of violence or bullying in the workplace, of the complaint, or of the giving of evidence;
• when the employment relationship was terminated or the measure was taken after legal proceedings were brought, up to 3 months after the day on which the court decision became final.

Important note! The sanctions in case of non-compliance with the protection remain unchanged (payment of an indemnity to the protected worker, especially if he/she is not reinstated in the company and the court has ruled that the dismissal or the measure taken by the employer is contrary). However, certain rules on the accumulation of indemnities are clarified.

Final remarks

The protection provided by the Act of 4 August 1996 (described above) does not apply to workers who take steps (request for formal psychosocial intervention, complaint, proceedings or testimony) for acts of violence or bullying in the workplace linked to a discrimination criterion (age, current or future health status, sex, maternity, paternity, etc.) or sexual harassment at work.

These workers benefit from the protection against adverse measures provided by the anti-discrimination Acts.

Important note! The employer is informed that the worker is protected (regardless of the legal basis for protection):

• by the psychosocial hazards prevention adviser if it concerns a worker who has submitted a request for formal psychosocial intervention for acts of violence, bullying or sexual harassment in the workplace or (if he/she has consented to this communication) if it concerns a worker who gives evidence in the context of the examination of the request;
• by the Directorate of the Inspectorate of Well-being at Work, the police services, the public prosecutor or the examining judge if it concerns a worker who has lodged a complaint for one of the reasons described under "Protected workers".
• by the worker himself/herself if it concerns a worker who brings proceedings before the court or on behalf of whom proceedings are brought before the court so as to ensure compliance with the regulations;
• by the worker himself/herself if it concerns a worker who gives evidence in court.

Do you need to update your employment regulations as a result of the clarification of the protection scheme applicable in case of workplace violence and harassment? Please contact our Legal Partners via legalpartners@partena.be.

Source: Act of 07.04.2023 amending the Act of 10 May 2007 combating discrimination between women and men, Act of 30 July 1981 criminalising certain acts inspired by racism or xenophobia, Act of 10 May 2007 combating certain forms of discrimination, and Act of 4 August 1996 on the well-being of workers in the performance of their work, as regards protection against adverse measures, Belgian Official Gazette 15.05.2023.