Preventing workplace psychosocial hazards: protection against dismissal and against any harmful measure

Auteur: Catherine Mairy
Datum:

In the context of the prevention of psychosocial hazards at work, protection against dismissal and against any harmful measure is accorded to certain workers since 1 September 2014.

This Infoflash briefly describes this protection mechanism.

Protected workers and beginning of the protection period

The following workers will be protected against dismissal and against any harmful measure:

  • a worker filing a request for formal psychosocial intervention based on acts of violence, bullying or sexual harassment in the workplace at company level;

NB! The protection starts on the date of receipt of the request provided the request has been accepted (the employer is informed by the psychosocial hazards prevention adviser).

  • a worker filing a complaint in the context of acts of violence, bullying or sexual harassment in the workplace with the Directorate of the Inspectorate of Well-being at Work in which he/she request its intervention on one of the following grounds:

o   the employer has failed to appoint a prevention adviser specialised in the psychosocial aspects of work;

o   the employer has failed to implement due and proper procedures;

o   the request for formal psychosocial intervention based on acts of violence, bullying or sexual harassment in the workplace has not, in the worker’s view, succeeded in putting an end to the acts of violence, bullying or sexual harassment in the workplace;

o   the procedures have not, in the worker’s view, been applied in a legal manner;

NB! This worker is protected from the time when the complaint is acknowledged as received (the employer is informed by the person who receives the complaint).

  • a worker filing a complaint in the context of acts of violence, bullying or sexual harassment in the workplace with the police, public prosecutor or investigating judge in which he/she request its intervention on one of the following grounds: 

o   the employer has failed to appoint a prevention adviser specialised in the psychosocial aspects of work;

o   the employer has failed to implement due and proper procedures;

o   the request for formal psychosocial intervention based on acts of violence, bullying or sexual harassment in the workplace has not, in the worker’s view, succeeded in putting an end to the acts of violence, bullying or sexual harassment in the workplace;

o   the procedures have not, in the worker’s view, been applied in a legal manner;

o   the internal procedure is inappropriate given the seriousness of the acts to which he/she has been subjected;

NB! This worker is protected from the time when the complaint is acknowledged as received by the addressee (the employer is informed by the person who receives the complaint).

  • a worker raising a court action, or for whom one is raised, seeking to enforce compliance with the rules on violence, bullying or sexual harassment in the workplace;

NB! This worker is protected as from service of the summons or filing at the court registry (the employer is informed by the worker).

  • a worker acting as a witness by dint of the fact that, within the framework of examination of the request for formal psychosocial intervention based on acts of violence, bullying or sexual harassment in the workplace, he/she has informed the psychosocial hazards prevention adviser in a dated, signed document of the facts that he/she himself/herself has seen or heard and that relate to the situation forming the subject-matter of the request;

NB! This worker is protected as from the time when the witness statement is filed (the employer is informed by the psychosocial hazards prevention adviser).

  • a worker giving witness testimony in court within the framework of acts of violence, bullying or sexual harassment in the workplace.

NB! This worker is protected as from the time at which he/she is summoned or subpoenaed to give court testimony (the employer is informed by the witness).

End of the protection period

The protection period ends:

  • at the end of the 12 months following filing of the request for intervention, filing of the complaint or giving of testimony;
  • at the end of the 3 months following the time when the judgment becomes final.

Protection mechanism

In the course of the protection period, the employer:

  • may not terminate the employment relationship;
  • or take any harmful measure during the existence or after the cessation of employment relations, 

except for reasons having nothing to do with the request for formal psychosocial intervention based on acts of violence, bullying or sexual harassment in the workplace, the complaint, the court action or the witness testimony.

Penalty

If, during the protection period, the employer violates the protection that the worker is entitled to, the worker (or the trade union organisation that he/she is a member of) can demand, under certain conditions, his/her reinstatement in the company under the terms prevailing before the termination or change.

In the absence of (a demand for) reinstatement and if the court has ruled that the dismissal or the measure that has been taken by the employer is contrary, the employer has to pay the worker a protection indemnity that is equal to:

  • either a lump sum corresponding to six months’ gross pay;
  • or a sum corresponding to the loss actually suffered by the worker.

Transitional provision

The protection mechanism as in force before 1 September 2014 continues to apply to the worker who has filed a complaint, given a testimony or raised a court action before 1 September 2014.

FRNL

Sources: Act of 28 February 2014 supplementing the Act of 4 August 1996 on the well-being of workers in the performance of their work as regards the prevention of psychosocial hazards at work, including violence, bullying and sexual harassment in the workplace, Moniteur belge of 28 April 2014; Royal Decree of 10 April 2014 on the prevention of workplace psychosocial hazards, Moniteur belge of 28 April 2014; in French on the website of the FPS Employment, Labour and Social Dialogue, heading "Thèmes/Bien-être au travail/Charge psychosociale" (www.emploi.belgique).

Auteur: Catherine Mairy

09/12/2014