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Hiring a new colleague: what are my rights and obligations?

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What is it about?

The freedom of recruitment is subject to the recruitment law and is limited by general legal rules such as liability, public order and morality, as well as specific rules regarding the recruitment procedure.

In concrete terms, which rules apply?

Non-discrimination

The problem of discrimination, inter alia in the world of employment, is still an issue and has not been definitively resolved until now.

The prohibition of discrimination is nevertheless firmly anchored in legal texts (of various kinds), but is also constantly being interpreted by case law and legal doctrine in order to respond to social developments.

In addition, there are also numerous rules from the European level which can be directly applied in your daily work as an employer. Think of the free movement of workers within the EU and the EEA and the ban on discrimination based on nationality.

Today we count more than 30 years of discrimination legislation! The first discrimination prohibition in Belgian law concerned gender discrimination and the obligation to pay men and women equally for equivalent work (!). The equal treatment of men and women is a fundamental right that must always be respected.

Since 10.05.2007, Belgium has had three fundamental anti-discrimination laws. These have improved and replaced the many old regulations.

More specifically, this concerns:

  • the law combating certain discriminations: age, trade union beliefs, sexual orientation, marital status, birth, property, religion or philosophy of life, current or future state of health, disability, physical or genetic characteristic or social origin;
  • the law combating discrimination between women and men;
  • the law punishing certain acts inspired by racism and xenophobia: prohibition of discrimination based on so-called race, nationality, national or ethnic origin.

Commonly, both direct and indirect discrimination or distinction are prohibited:

  • direct distinction: someone is treated less favourably than someone else in a comparable situation and on the basis of one of the listed grounds (protected criteria).
  • indirect distinction: an apparently neutral provision, criterion or course of action which, on the basis of a protected criterion, places one or more persons at a particular disadvantage in comparison with others.
  • direct discrimination: a direct distinction between persons on the basis of protected criteria.
  • indirect discrimination: an indirect distinction between persons on the basis of protected criteria, which cannot be justified (i.e. : a distinction which does not pursue a legitimate aim and for which the means used are neither appropriate nor necessary).

No direct distinction on the grounds of age, so-called race, sexual orientation, disability, religious or philosophical convictions shall be permitted, except where, by reason of the nature of a professional activity or of the context in which it is carried out, such a distinction constitutes a genuine and determining occupational requirement, subject to a legitimate aim and proportionality between the aim and the requirements.

Age is a special case. A distinction is allowed if it is objectively and reasonably justified (legitimate employment or labour market policy objectives, for example).

Laws provide for both civil and criminal sanctions in case of violation! Especially the civil sanctions are, in employment relationships, of importance.

Know also that:

  • in the event that an employee reports facts to Unia (Interfederal Equal Opportunities Centre), to the Institute for Equality between Women and Men or to another interest group, which give rise to a suspicion of discrimination, the burden of proof - absence of discrimination - falls on the employer.
  • The law protects the employee against dismissal and unilateral modification of the contract and conditions of employment, if he or she has lodged a complaint or brought legal proceedings. This protection extends to 12 months after the complaint was filed or 3 months after the court decision became final.

In addition to the laws, there are also 2 important collective agreements:

  • Cao 38sexies of 10.10.2008 amending the collective labour agreement no. 38 of 6.12.1983 concerning the recruitment and selection of employees.
  • Cao 95 of 10.10.1995 concerning equal treatment during all phases of the employment relationship
  • Cao 95 aims to ensure compliance with the principle of equal treatment during all phases of an employment relationship, from recruitment to the end of the employment contract. During the employment relationship, the employer may not make any distinction based on the following elements, except, on the one hand, if the distinction is related to the function or the nature of the enterprise and, on the other hand, if such a distinction is required or permitted by law.

    In CLA 95, the "principle of equal treatment" means the absence of any discrimination on the grounds of age, sex or sexual orientation, marital status, history of illness, so-called race, colour, descent or national or ethnic origin, political or philosophical conviction, disability, membership of a trade union or other organisation.

    Selection criteria in case of collective recruitment or dismissal

    The Works Council ("WC") has the decisive power to establish the general criteria in the event of recruitment or dismissal due to economic or technical circumstances.

    These criteria are set out in the following sections.

    This competence consists of:

    • the determination of the general criteria to be followed in the event of collective dismissal or recruitment, taking into account the interests of both the company and the employees: criteria for individual dismissal or recruitment are therefore not aimed at here;
    • in the framework of the laws, collective agreements or decisions of joint committees, an investigation into the general criteria to be followed;
    • the determination of the general criteria to be followed in the event of the transfer of full-time employees to a part-time working arrangement due to economic or technical conditions, and vice-versa.

    Why does the Works Council have a decisive authority? The intention is to involve the Works Council more closely in the dismissal or recruitment of staff members. The employer (head of the enterprise) retains its decision-making power to ensure the organisation and running of the enterprise, and thus also the opportunity to limit re-hires if necessary, but the Works Council lays down the general guidelines for re-hiring (the Works Council determines the humanitarian and social grounds the employer has to follow when re-hiring).

    Once the decision to rehire has been taken, the Works Council has the power to decide.

    Once the decision to rehire has been taken and it has been determined which employees will be rehired in which position, the employer must apply the general criteria set by the Works Council.

    These rules can be found, inter alia, in article 12 of CAO n°9 of 9 March 1972.

    Employer's obligation towards job applicants

    Obligations: 5 substantive obligations

    The employer must bear the costs of examinations and tests that are organized as part of a selection procedure and which he has commissioned.

    The employer must also pay the costs of the examinations and tests that are organized as part of a selection procedure and which he has commissioned.

    The employer must keep the documents added to the application procedure available to the applicant for a reasonable period of time, but only in the event that the applicant is not retained.

    The employer may not ask the applicant to provide sealed and certified copies of diplomas, certificates and other documents, but may ask the applicant to provide legible copies of an original document. Only in case of doubt can the employer ask to submit original documents.

    Rules of conduct

    In addition to the 5 substantive obligations listed above, the signatories of CBA 38sexies have made commitments to respect "rules of conduct". These commitments related to recruitment and selection are only moral commitments.

    Including :

    Offer of employment: must contain sufficient informational data such as the nature of the position, the requirements necessary to fill the position, the place of employment, how candidates should apply, etc.;

    Suspicion: the applicant is presumed to meet the requirements of the job and the employer must inform the non-rejected candidate, within a reasonable time, of the decision taken with respect to him and the reasons for it;

    Recruitment and selection procedure: questions concerning the candidate's private life are allowed only to the extent that they are directly relevant to the nature and conditions of the employment;

    Data: in general, the employer is required to treat the data collected with the necessary confidentiality;

    Timeline: the selection procedure must be completed within a reasonable timeframe;

    Testing: the employer must not allow the practical tests requested to verify the candidate's ability to perform to exceed the time required.

    Application fee: the employer must keep the application fee as low as possible.

    Fictitious job advertisements: employers should avoid fictitious job advertisements that are entered for purely advertising reasons as much as possible.

    In case of an applicant, the applicant will be asked:

    • cooperate in good faith in the selection procedure and
    • communicate the necessary information to the employer in so far as this is useful for the nature and conditions of the position concerned. Finally, he shall not divulge any confidential information that he learns as a result of the procedure.

      Cao n° 38sexies links to the prohibition of discrimination a code of conduct that employers should ideally comply with, namely: recruitment and selection should be carried out in a way that treats everyone equally and without distinction, unless an applicant qualifies for preferential treatment to eliminate factual inequalities.

      If preferential treatment applies, it must be explicitly stated, as well as the reasons for it.

      Employers are requested to comply with this Code of Conduct both for the recruitment and selection procedure sensu strictu, and for the intake into a company through internships, apprenticeships and on-the-job training.

      Channels of recruitment: these must lead to equal opportunities and even promote them. Therefore, the vacancies should be described in a discrimination neutral way (in terms of language, diploma, nationality, ...). Moreover, it is the employer's responsibility to make reasonable accommodations to allow persons with disabilities access to the recruitment and selection procedures (appropriate measures to allow each person access to the procedure, unless it constitutes a disproportionate burden).

      Requirements: the questions asked must be relevant to the job and/or to the performance of the job. The employer may only be guided by functional requirements (the requirements that are relevant due to the nature or conditions of performance of the job).

      Assessment: only the acquired competencies may be taken into account when assessing whether the relevant functional requirements are fulfilled. The employer ensures that internal and/or external (even unconscious) prejudices do not play a role in the selection. Any test packages used shall be screened as thoroughly as possible against (even unintentional) discriminatory aspects. The tests related to the suitability of a candidate should be applied in an unbiased manner and only check the actual potential of the applicant.

      A note: Employers should ensure that any person involved in a selection process does not record information which would constitute discrimination unless the information relates to preferential treatment in the context of a selection process or unless the recording of such information is required by law or unless certain accompanying measures are to be taken.

      Any complaints made by an applicant: Any applicant who makes a substantiated written complaint of improper treatment will receive a written response from the company concerned within a reasonable period of time.

      Feedback: if a company has a works council or a union delegation, it will be informed annually of complaints and their resolution.

      The recruitment survey

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      Preliminary health assessment

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      For certain functions (safety functions, activities with well-defined risks, activities related to food, etc.), the prevention advisor-doctor must examine every employee who is hired.

      The decision of the prevention advisor-doctor as to the employee's suitability is communicated to the employee before the employee is employed.

      Extension to other employees

      On the initiative of well-defined categories of persons, the prior health assessment may be extended to all employees who work in an immediate vicinity of the workstation of an employee who is subject to mandatory health surveillance.

      Medical tests

      Medical tests and examinations only concern the determination of the current (and therefore not the future) suitability of a (candidate) employee for a vacant position.

      Any medical test or examination for the purpose of obtaining medical health information or pedigree information is strictly prohibited.

      The recruitment notification

      The employer must report the start and end of employment to the NSSO. This so-called DIMONA-declaration must be done immediately.

      Conclusion

      Many of the above rules are known: gender discrimination, the prohibition of discrimination on the basis of nationality or race, etc.

      The freedom of recruitment of an employer is not absolute and a number of (strict) rules must be followed and applied.

      In general, these are rules based on common sense. However, it can be useful to remind employees of the rules, because non-compliance can have far-reaching consequences for the company. Both legally (civil and criminal sanctions) and in terms of image.

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      Heidi Vergauwe

      Dedicated and meticulous Payroll & HR Advisor, always willing to go for the extra (s)mile!