Belgian law recognizes employees and self-employed individuals. There is no third category.

Under Belgian law, the employment contract is characterized by the meeting of 3 elements:

1. the undertaking to provide services
2. under the authority of a person who provides the work and
3. the payment of remuneration.

The main difference between a subcontractor contract (or other contracts for the performance of services on a self-employed basis) and an employment contract consists of the absence of authority/subordination in the working relationship.

As a matter of principle, the parties are free to characterize their agreement as they see fit. The effective performance of the agreement, however, has to correspond with the nature of the chosen relationship. The 2006 Act on the Nature of Employment Relationships defines the following general criteria in order to ascertain whether such factual elements exist in a particular case and thus whether or not a subcontractor contract (or another type of self-employed contract) is, in fact, an employment contract:

• the parties’ intention, it is understood that the actual performance of the agreement must be in line with the chosen nature of the employment relationship;
• the freedom to organize his/her own working time;
• the freedom to organize his/her own work; and
• the supervisory control of one party upon the other.

Thus, an independent contractor is deemed to have the possibility to work for third parties (especially if they are competitors), the freedom to accept or refuse proposed work, the possibility to hire their own staff, the possibility to freely “organize” the working time.

If the characterization chosen by the parties (e.g. a services or management contract) is not compatible with the way the contract is being carried out, the labor court can be asked to determine the nature of the contract themselves. The court can then re-characterize the contract into an employment contract. In the event of a re-characterization, the employer will be liable for any arrears of remuneration, benefits, damages or social security contributions and he may also be exposed to criminal or administrative fines.

Yes, there are different types of employment contracts.

Open-ended/fixed-term employment contracts: if no time limit is set in the contract, it is an “open-ended” contract, which means that either party may terminate it at any time, subject, however, to specific termination rules applicable under Belgian law. Conversely, a fixed-term contract is one in which the parties lay down the terms of the agreement beforehand. In principle, the contract automatically ends on the expiry date, and the parties may not unilaterally terminate the contract before the expiry date. The possibility to conclude successive fixed-term contracts is subject to specific rules laid down in the Employment Contracts Act of July 3, 1978.

Employment contract for a specific task: in this case, the agreement in principle ends at the moment the work is completed. The object and extent of the work to be carried out by the employee must be defined with precision so that the parties can estimate the expected length of the contract.

Part-time contract: a part-time employee is an employee whose normal working time is less than that of a full-time employee. Such contracts must fulfill certain conditions: they must be set down separately in writing for each employee no later than the time he commences work and must include the working schedule.

In general, Belgian law does not make any specific formalities necessary for the valid formation of an employment agreement. If an employment contract is not in writing, it is however always deemed to have been concluded for an indefinite duration. Contracts for a fixed period or for a specific project must be executed in writing as well as part-time employment contracts and replacement contracts. In order to prevent abuse, Belgian law provides for additional strict conditions for successive uninterrupted fixed-term employment contracts.

As of January 1, 2014, trial periods are in principle forbidden.

Special attention must be paid to the detailed legislation regarding the language that is to be used in the professional relations between employer and employee and in all official documents. The main rule is that the language to be used in social relations is Dutch, French or German, depending on the place where the employee works.

The Act of 5 March 2002 on the principle of non-discrimination of part-time workers ensures equal treatment between part-time employees and comparable full-time employees.

This does not imply that part-time employees should obtain exactly the same amounts as full-time employees. When appropriate, the entitlements of the part-time employees are determined in relation to their working time. A different treatment of part-time workers is only allowed for objective reasons. Belgian law does not contain a definition of objective reasons. This should be interpreted in light of the EU Directive 97/81.

Employment contracts can not be assigned to another employer without the employee’s consent. An exception to this rule is the automatic transfer of employment agreements in the case of transfer of undertaking, albeit according to certain legal scholars, employees are entitled to object to such an automatic transfer.

If the company is transferred as a going concern (i.e. a business transfer, not a change in shareholdership), the employment agreements will be transferred automatically to a new employer, who acquires the company (or activity). Employees in Belgium do not have an organized right to object to their transfer of employment as part of a transfer in going concerned. The employment (and the employment conditions) should thus be continued. Under Belgian law, the transfer of the undertaking can not be a reason for the dismissal of the employee, except for economic, organizational and technical reasons (e.g. if a role becomes superfluous as the acquiring company already has sufficient employees carrying out that role).

If employees are dismissed within the framework of a transfer of undertaking, they can claim the legal notice period (in case of dismissal with notice) or the legal indemnity in lieu of notice (in case of immediate termination). An extra indemnity can be claimed if the employee can prove that the dismissal was caused by the transfer of undertaking and without there being economic, organizational and technical reasons for this dismissal.

In case of a change of control, the employees have the right to be informed. The target company must inform its workers’ representatives’ bodies (works council or in the absence thereof, the prevention and protection at work committee, or in the absence thereof, the trade union delegation or in the absence thereof, the workers themselves) of the contemplated deal and, as the case may be, of the fact that the transaction will have no impact on (i) the employment prospects for the workforce, (ii) the organization of the work or (iii) the employment policy in general.

The workers’ representatives must not be consulted unless the contemplated transaction contains any decision or intention that could have an impact on (i) the employment prospects for the workforce, (ii) the organization of the work or (iii) the employment policy in general.

If there are no such decisions or intentions with the impact as just described, the workers’ representatives have no further rights in respect of the transaction.

Neither the employee nor the employer is allowed to modify unilaterally an essential feature of the employment that was agreed upon (e.g. content of the function, place of work, salary package). A contract clause that would allow the employer to make such a modification is null and void.

The unilateral modification of an essential element of the contract by the employer can lead to a constructive dismissal, whereby the employer has to pay an indemnity in lieu of notice. In order to lead to a constructive dismissal, the modification must:

• concern an essential element of the employment contract;
• be unilateral;
• be substantial; and
• be definitive.

Examples of such unilateral modification of an essential element of the employment contract which is very likely to be considered as a substantial change to an essential element of the employment agreement:

• reducing the base salary (even if the bonus payment is increased);
• the demotion of the employee;
• (substantial) change of the place of work of the employee.

The employee experiencing a unilateral change of the terms of his/her employment contract has to send his/her employer a formal notice letter, asking the employer to stick to the terms of the employment contract. Should a unilateral and definitive change be made to an essential element of the contract despite the formal notice letter, then the employee can claim an indemnity in lieu of notice on the basis of constructive dismissal.

In Belgium, employers always have the right to terminate employees at any time, but given some specific protections foreseen by law, the cost related to the dismissal can be high.

Belgian employers have several ways to terminate an employment contract. The employment contract may come to an end by mutual agreement between the employer and the employee and it automatically terminates at its expiration if the contract is for a fixed period or a specific task. In such a case, the termination is not subject to any termination formalities. Mostly, however, termination results from a unilateral decision taken by the employer (or by the employee in case of resignation).

Employers may terminate an employee with a notice period to be performed, with an indemnity in lieu of notice or for serious cause (without notice period or indemnity in lieu).

Under Belgian law, every dismissal must be motivated upon request from the employee (except the dismissals during the 6 first months of employment). Therefore, for dismissals occurring after 6 months of employment, even within the framework of a fixed-term contract, the employer must be able to justify it, either by (i) the behavior or professional ability of the employee or by (ii) the needs of the undertaking.

Should a dismissal be not sufficiently motivated, it will be deemed manifestly unreasonable if a normal and reasonable employer would never have come to the same decision. If the dismissal is manifestly unreasonable, it will lead to the condemnation by a court of the employer to the payment of an indemnity ranging from 3 to 17 weeks of remuneration, on top of the regular termination indemnities.

Also, employment contracts cannot be terminated for discriminatory reasons (e.g. state of health, race, gender, age, maternity, etc.). If an employer is found guilty of discrimination, a lump-sum indemnity of 6 months of salary is due to the victim.

Finally, some employees are protected against dismissal because of their “vulnerable” situation, such as employees taking specific types of leave, filing specific complaints or assuming a specific function in the undertaking (e.g. prevention advisor, member of employee representative bodies). This protection entails the prohibition for the employer to dismiss for a reason related to the vulnerable situation of the employee.

Notwithstanding the above, the employers do maintain their right to dismiss. The financial risk linked to a specific dismissal will, however, depend on the situation of the employee and on the circumstances of the case. In cases where dismissal is not sufficiently motivated or is based on discriminatory reasons, or in case the employer decides to dismiss a protected employee, then the financial risk will be higher.

Each dismissed employee has the right to know the concrete reasons which have led to his dismissal. If not communicated in writing by the employer on his own initiative, the employee can request that the employer explain the reasons for dismissal. If the employer does not respond to the request, he owes a lump-sum civil fine equal to two weeks’ salary.

The employee may challenge the reason for dismissal before the labor courts. If the unjustified — meaning “manifestly unreasonable” — character of the dismissal is established, the employer owes damages for an amount of between 3 and 17 weeks of salary. The level of the damages depends on the degree of unreasonableness.

The fact that the dismissal must be ‘manifestly’ unreasonable implies a marginal check by the courts of the unreasonable character of the reason for dismissal; the labor courts must not determine the adequacy of the employer’s policy.

In the case of manifestly unreasonable dismissal, the employee may also choose to claim compensation for the actual damage suffered in accordance with the general concept of abuse of rights, instead of opting for lump-sum damages. In that case, the employee will need to prove the actual damage suffered. Employees can, in general, not claim a right for re-employment in case of wrongful termination.

Belgian law provides protection to whistle-blowers.

The Act of 28 November 2022 on the protection of reporters of breaches of Union or national law discovered within a legal entity in the private sector implemented the EU Whistle-blower Directive (2019/1937) into Belgian law for the private sector (the "Whistle-blower Act").

An Act of 8 December 2022 did the same for the federal public sector, a Decree of 18 November 2022 for the Flemish public sector, a Decree of 21 February 2022 for the public sector of the German-speaking Community, a Decree of 6 July 2022 for the public sector of the French Community, a Decree of 13 October 2022 for the public sector of the Walloon Region and a Joint Decree and Ordinance of 27 April 2023 for the public sector of the Brussels-Capital Region.

Based on the Whistle-blower Act, whistle-blowers in the private sector who made a report on information that they became aware of in a work-related context (or outside of a work-related context if the report relates to legislation on financial services, products and markets or anti-money laundering and terrorism financing) are protected against retaliation provided that (i) they had reasonable grounds to believe that the information they reported on was correct, (ii) they made a report with respect to one of the domains that fall in scope of the Whistle-blower Act, and (iii) they reported the information through one of the available reporting channels, i.e. an internal reporting channel, an external reporting channel or public disclosure.

The criterion of ‘reasonable grounds’ will be assessed in light of a person who would be placed in a similar situation and who would have similar knowledge.

It must be noted that protection against retaliation will only be offered to whistle-blowers who made use of public disclosure if they had (i) first reported their concern internally and externally (or directly externally) but no appropriate action was taken, or (ii) reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest, or there is a risk of retaliation or low prospect of the breach being effectively addressed.

Victims of retaliation are entitled to compensation of between 18 and 26 weeks’ remuneration if they are employees, or actual damages if they are not bound by an employment agreement. Moreover, if the report relates to violations of legislation on financial services, products and markets or anti-money laundering and terrorism financing, the compensation will be equal to up to 6 months’ remuneration (or actual damages if the victim was not bound by an employment agreement). In the latter case, if the whistle-blower was an employee and the act of retaliation consisted of a dismissal, the whistle-blower can ask to be reintegrated into the organization.

Victims of retaliation can also file a complaint with the federal coordinator who will initiate an extrajudicial procedure to verify the existence of retaliation. The burden of proof that no retaliation had taken place will rest on the company. In case there is a reasonable suspicion of retaliation, the federal coordinator will first ask the highest executive of the legal entity to demonstrate that no retaliation has taken place. If it appears that there is a reasonable suspicion of retaliation, he will subsequently give recommendations within 20 days following receipt of the answer (in the form of a duly justified report) from the highest executive of the company, make recommendations to reverse the retaliation or remedy the harm that was caused. The highest executive then has 20 days to accept or reject these recommendations.

As already mentioned, similar protection is provided to whistle-blowers in the public sector. The Act of 8 December 2022 provides that all statutory officials and all other persons working within or with federal public institutions will be protected as whistle-blowers when they report or disclose information they received in a work-related context on possible integrity violations of the public institution. They also need to have reasonable grounds to believe that the information is correct and falls within the scope of the whistle-blowing act. Such integrity violation is any threat to or violation of the public interest and is either a (i) violation of legislation, (ii) a risk to life, health or safety of persons or environment or (iii) a serious deficiency in professional duties or in good governance.

Protection is offered to whistle-blowers, but also to facilitators, third parties and legal entities linked to the whistle-blowers.

Employees have a right to privacy in the workplace, which means that any infringements on that right to privacy must comply with the principles (inter alia) of transparency, proportionality, and legitimacy.

Concretely, this means that the employer must:

• take measures against infringing the right to privacy, such as processing personal data, only insofar as required for the purpose of the correct performance of the employment agreement (e.g. exercise of patronal authority, payroll obligations, avoiding misuse of the company’s material and immaterial goods, ensuring the employees’ safety,...);
• ensure that the infringements to the right to privacy are limited to what is necessary to attain the purpose of the measure implemented (e.g. the employer may not always individualize data collected when monitoring internet usage in the company, surveillance cameras may not be placed in restrooms,...); and
• inform the employers subject to the infringing measure about the data processing activity, for example in a policy or in the work rules (purpose of the measure, authority performing the activity, duration of preservation of the collected data,...).

The employer must comply with the GDPR and the Law of 30 July 2018 relating to the protection of individuals regarding the process of their personal data. Specific regulations also apply to certain types of infringing measures (e.g. for the implementation of surveillance cameras in the workplace or the monitoring of networked electronic communication data).

In case of a breach, the employees may:

• Lodge a complaint with the Belgian Data Protection Authority; and/or
• Initiate proceedings before the competent court in order to claim compensation for the damages incurred due to the illegal infringement of the right to privacy.

The Belgian Anti-Discrimination Act forbids discrimination based on age, sexual orientation, civil status, birth, wealth, faith or personal belief, political orientation, 'trade union conviction', language, current or future health status, handicap, physical or genetic disorder, or social origin.

Violation of the Anti-Discrimination Act could, in theory, result in any indemnity. There is no monetary upper limit with regard to the indemnity that a victim of discrimination can claim. Victims of discrimination can either claim a lump-sum compensation equal to a six-month remuneration (without having to give evidence of the actual damage), or a higher indemnity corresponding to the actual damage suffered. Thus, if the victim concerned can prove that the actual damage exceeds the standard lump-sum compensation, the labor courts can grant a higher amount of compensation. This is however considered to be very difficult to prove.

In addition, different other laws forbid discrimination. The Racism Act and the Gender Act forbid discrimination based on (among others) race, color, nationality, and sex. Specific to the employment context are (inter alia) the Act of 5 June 2002 on the principle of non-discrimination toward employees with a fixed-term contract (which ensures equal treatment between fixed-term workers and comparable permanent workers) and the above-mentioned Act of 5 March 2002 combating discrimination of employees with a part-time contract.

Employees are entitled to:

• 20 paid vacation days per year in a 5 working days per week regime, 24 vacation days per year in a 6 working days per week regime;
• 10 bank holidays.

In certain Joint Committees, complementary vacation days may be granted to the employees (e.g. based on seniority). The employer may also decide to grant extra-legal vacation days to the employees (in a company-level collective labor agreement, in the work rules or the individual employment agreement).

Regarding medical leave, in Belgium, the employee may be absent from work for as long as he is covered by a medical attest identifying him as being currently unable to work. The employer is obliged to pay the first 30 days of sick leave to the employee. Thereafter the employee will be paid by his Health Insurance Fund (mutuelle/ziekenfonds).

Parents who are employees in the Belgian system are each entitled to take parental leave. Parental leave entails:

• a maximum of 4 months of full-time leave, consecutively or split up into periods of at least 1 month;
• a maximum of 8 months of half-time leave, consecutively or split up into periods of at least 2 months;
• a maximum of 20 months working 4/5, consecutively or split up into periods of at least 5 months; or
• a maximum of 40 months working 9/10, consecutively or split up into periods of at least 10 months;

The parental leave can be taken at any time until the child is 12 years old (or 21, if the child is disabled). The allowances for parental leave are paid out by social security as per the statutory norms.

There are numerous other types of leaves in Belgium, among others: maternity leave, paternity leave, marriage leave, bereavement leave, educational leave, leaves for urgent reasons, leave for testifying in court,... All these types of leaves are subject to different terms and conditions (e.g. requirements regarding the accumulated seniority, age, working time).

A recent change is that as of 2024, employees who fall ill during their planned holidays, do no longer 'lose' those holidays. They can take the holidays on which they become ill, later (if certain conditions are met). There is a risk that employees 'abuse' this system to maximize their number of days of holidays.

The Belgian Employment Contract Act prescribes that employees may not divulge any secret or confidential information, nor engage or cooperate in any act of unfair competition.

Moreover, the employment contract may contain a contractual non-competition clause whereby the employee is prevented, when he leaves his employer, from carrying out similar activities, either on his own behalf or by entering into the service of a competitor. A non-competition clause may be agreed upon if the annual gross remuneration of the employee exceeds a certain threshold. In order to be valid the (standard) non-competition clause must:

• be in writing;
• relate to similar activities;
• have a duration that does not exceed 12 months after the termination of the contract;
• must be geographically limited to the Belgian territory; and
• must provide for the payment of a lump sum indemnity equal to at least 50% of the worker’s regular gross salary over the same period of time.

Any violation of the non-competition clause is sanctioned by the reimbursement of the lump-sum indemnity, the payment of a similar sum, and by the payment of additional damages if needed.

Please note that specific provisions apply to non-competition clauses for sales representatives (e.g. no indemnity being due by the employer upfront).

For white-collar workers, and provided that the employer carries out its activities on an international scale or has its own research and development center, there is a possibility to enter into a derogating non-competition clause (e.g. encompassing a larger territory than Belgium and/or extending its applicability beyond 12 months).

In addition, Belgian employment agreements sometimes contain a non-solicitation clause. The non-solicitation clause is not regulated by the Belgian Employment Contracts Act. However, it must be ensured that this is not an abusive clause. This is the case if the benefit to the employer is considered to be disproportionate to the loss of opportunity for the employee. Therefore limitation in time for this clause is for example necessary.

Normally in Belgium, a restrictive covenant is agreed upon by the employee and employer together with the other aspects of the employment agreement and thus before the start of the employment agreement.

An employee cannot be dismissed for refusing to sign a restrictive covenant. A restrictive covenant can only be agreed upon by both the consent of the employee and the employer.

If an employee is dismissed for solely refusing to sign a restrictive covenant, it will be deemed manifestly unreasonable and will lead to the condemnation by a court of the employer to the payment of an indemnity ranging from 3 to 17 weeks of remuneration on top of the regular termination indemnities (see the response to "Are there remedies for dismissal without cause or wrongful termination?").

According to the Belgian Employment Contracts Act, a payment of a lump sum indemnity equal to at least 50% of the worker’s regular gross salary over the same period of time serves as a consideration for the non-competition clause.

The employer's and employee's contributions to the Belgian social security scheme are used (amongst others) to pay pensions.

On top of this (legal) pension, employees can be entitled to a supplementary pension, put in place at the sector or company level. 

On a sector level, a sector pension plan can be introduced by a collective bargaining agreement, implying that all employers who are active in the sector must participate and contribute. Sometimes a sector plan, however, foresees an opt-out or exceptions for certain companies.

A supplementary pension plan can also be entered into at the company level. This typically takes the form of group insurance, financed by the employer and, as the case may be, the employees.  

a) Legal Belgian social security scheme

For the workers (blue-collar ("bc") and white-collar ("wc")), the Belgian legal social security system provides for legal social coverage based on the payment of social contributions on income from work paid by the employer and the wc/bc workers. These social security contributions serve to finance the mandatory legal social security system.

Each month the employer pays a considerable amount of social security contributions calculated on the gross salaries paid to his workers into the social security fund (for wc, an average of 28% and for bc, an average of 40-45%). Each worker also pays a proportion of his/her gross salary in social security contributions (13.07%). This fund is then used to pay social security benefits to the workers (bc/wc):

• allowances in the event of sickness
• unemployment benefits
• allowances in the event of incapacity for work through sickness or invalidity
• allowances in the event of accidents at work
• allowances in the event of industrial disease
• family allowances
• legal pensions allowances

b) Legal supplementary support systems

There are also supplementary support systems. These supplementary support systems are not paid on the basis of contributions made but are financed with government resources. These forms of support are given under strict legal conditions. As a rule, these forms of support are dependent on a person’s available income. Foreigners cannot always claim Social Security and support to the same extent as Belgians. The supplementary support systems are:

• income support
• the income guarantee for the elderly
• the guaranteed family allowance
• payments for people with a handicap
• payments for help to the elderly

c) Collective labor agreements

In addition, national and sector-level agreements provide for the granting of benefits to wc/bc by their employer such as minimum guaranteed wages, additional end-of-year premiums, additional extra-legal pension schemes, night and/or shift premiums, outplacement services, training entitlement, etc.

No. However, the law allows the employer to terminate the employment contract of an employee who reaches the legal pension age with a special (shorter) notice period. The notice period is limited to 26 weeks’ notice. If the employment agreement is terminated with immediate effect, a maximum indemnity in lieu of notice of 26 weeks of remuneration indemnity must be paid to this employee.

The question is currently debated (non-discrimination principle based on the age of the worker). As a consequence, each plan will have to be examined to see whether its conditions could or not be considered as infringing the non-discrimination principles based on the age of the worker.

In general, if the worker has reached the legal retirement age, he/she is not obliged to take his/her statutory pension effectively and may continue to work for his/her employer. In this case, there are two possibilities:

• the worker remains a member of the supplementary pension plan (or of any other extra-legal benefit plan) for as long as the worker is employed. The constitution of the worker’s supplementary pension (or granting of other benefits) continues;
• the worker chooses to request payment of his/her supplementary pension anyway. This is only possible if the pension regulations allow it.

The situation is different in case the worker later returns to work after the legal retirement age, he/she can no longer build up new pension rights under a supplementary pension plan. When his/her statutory pension begins, his/her supplementary pension is also paid automatically.

Under Belgian employment law, currently, only two vaccines are mandatory for employees and only in specific sectors of industry: the vaccine against the hepatitis B virus and the vaccine against tetanus (note that more generally, the vaccine against polio is mandatory for all Belgian citizens).

The COVID-19 vaccine currently does not figure on the list of mandatory vaccines and hence an employer cannot make it mandatory for its employees.

Absent any possibility of obliging employees to get the vaccine, an employer cannot terminate an employee’s employment if he/she refuses to get the COVID-19 vaccine. Such termination of employment will most likely be considered patently unreasonable (sanction equal to between three and 17 weeks’ remuneration) and potentially also abusive (which would entitle the employee to compensation equal to damage suffered).

After the governmental restrictions relating to COVID-19 had been lifted, employees were required to return to the workplace agreed upon in their employment agreement (i.e. the company’s office spaces if no home- or teleworking arrangement was agreed upon). Employees refusing to return to the office without a valid reason (such as illness) are in violation of the agreed terms and conditions of employment and are considered to be in unjustified absence. Employers can proceed to the termination of employment of employees refusing to return to work in an office, but before effectively proceeding to such termination of employment, it is strongly recommended to first send a formal notice of default (ingebrekestelling/mise en demeure) by registered mail, urging the employee to come back to work.