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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 rules of law, such as liability, public order and morality, as well as by specific rules regarding the recruitment procedure.

In concrete terms, which rules apply?

Non-discrimination

The problem of discrimination, particularly in the world of work, is still alive and, to date, has not been definitively resolved.

However, the prohibition of discrimination is firmly rooted 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 that can be directly applied in your daily work as an employer. Just think of the free movement of workers within the EU and the EEA and the ban on discrimination on the basis of nationality.

Today, we count more than 30 years of discrimination legislation! The first prohibition of discrimination in Belgian legislation 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.

Later on, the other "classical" grounds of non-discrimination were applied in the world of employment, e.g. in recruitment procedures: non-discrimination on the basis of race or descent, religion or philosophy, disability, age, sexual orientation, etc.

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

More specifically, these are:

  • the law combating certain discriminations: age, trade union beliefs, sexual orientation, civil status, birth, wealth, religion or philosophy of life, current or future state of health, disability, physical or genetic characteristic or social origin;
  • the law to combat 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.

Both direct and indirect discrimination or distinction are prohibited:

  • direct distinction: treating someone 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 practice which, on the basis of a protected criterion, puts one or more persons at a particular disadvantage compared 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 based on age, so-called race, sexual orientation, disability, religious or philosophical convictions is allowed, except when such a distinction constitutes a genuine and determining occupational requirement by reason of the nature of a professional activity or of the context in which it is carried out, provided that the objective is legitimate and the requirements are proportionate.

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

Legislation provides for both civil and criminal sanctions in case of violation! Civil sanctions are particularly important, in employment relationships.

Also know that:

  • In case an employee brings forward facts to Unia (Interfederal Equal Opportunities Centre), to the Institute for Equality between Women and Men or to any other interest group, which give rise to a suspicion of discrimination, the burden of proof - absence of discrimination - lies with 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 lasts until 12 months after the complaint has been lodged or 3 months after the court decision has acquired the force of res judicata.

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

  • collective agreement 38sexies of 10.10.2008 amending the collective agreement no. 38 of 6.12.1983 concerning the recruitment and selection of employees.
  • covenant 95 of 10.10.1995 concerning equal treatment during all phases of the employment relationship.

The purpose of CLA 95 is to ensure compliance with the principle of equal treatment at all stages of an employment relationship, from recruitment to termination of contract. During the employment relationship, the employer may not make any distinction based on the elements listed below, except, on the one hand, when the distinction is related to the function or the nature of the enterprise and, on the other hand, when such distinction is required or allowed by law.

In CLA 95, the term "principle of equal treatment" means the absence of any discrimination based on age, sex or sexual orientation, marital status, past illness, so-called race, colour, descent or national or ethnic origin, political or philosophical conviction, disability, membership of a trade union or any 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 case of recruitment or dismissal due to economic or technical circumstances.

This power includes

  • defining the general criteria to be followed in the event of collective redundancy or recruitment, taking into account the interests of both the company and the employees : criteria for individual redundancy or recruitment are therefore not considered here;
  • within the framework of the laws, collective agreements or decisions of joint committees, an examination of the general criteria to be followed;
  • the determination of the general criteria to be followed in case of transfer of full-time employees to a part-time work arrangement due to economic or technical circumstances 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 and hiring of employees. The employer (head of the enterprise) keeps his decision making power to ensure the organization and functioning of his enterprise, and thus also the opportunity to limit the re-hiring, but the Works Council defines the general guidelines for the re-hiring (Works Council defines the humanitarian and social reasons that must be followed by the employer when re-hiring).

Once the decision to rehire has been taken and it has been decided which employees will be rehired for which position, the employer must apply the general criteria laid down by the Works Council.

These rules can be found, inter alia, in Article 12 of Collective Labour Agreement no. 9 of 9 March 1972.

Employer's obligation towards job applicants

Collective agreement n°38sexies of 10.10.2008 (amending collective agreement n°38) lays down standards and rules of conduct for recruitment and selection. These rules mainly concern the employer's obligations towards the candidate-employee.

Obligations: 5 substantive obligations

The employer must observe the principle of equal treatment for all applicants.

The employer must bear the costs of examinations and tests organised as part of a selection procedure and commissioned by the employer.

The employer must provide job applicants who are subject to unemployment benefit checks with documentary evidence, if they so request (a letter stating the time, place and date of the examination and, where appropriate, the reasons why the job applicant was not selected).

The employer must keep the documents submitted with the application at the applicant's disposal for a reasonable period of time, but only in the event that the applicant is not selected.

The employer may not ask the applicant to produce certified copies of diplomas, certificates and other documents, but it may ask the applicant to produce legible copies of an original document. Only in the event of doubt may the employer ask you to produce original documents.

Rules of conduct

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

Among others :

Job offer: must contain sufficient informative data such as the nature of the job, the requirements needed to fill the position, the place of employment, how candidates should apply, etc.;

Presumption: 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 regard to him and the reasons for it;

Recruitment and selection procedure: questions concerning the candidate's private life are only allowed 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;

Deadline: the selection procedure must be completed within a reasonable time;

Tests: the employer must not allow the practical tests requested to assess the candidate's aptitude to last longer than necessary;

Application costs: the employer shall keep the application costs as low as possible;

Fictitious vacancies: employers shall, as far as possible, avoid fictitious vacancies which are purely advertising.

Applicants are required

  • to cooperate in good faith with the selection procedure and
  • to provide the employer with the necessary information in so far as it is useful for understanding the nature and conditions of the post in question. Finally, they must not divulge any confidential information they have learned as a result of the procedure.

Code of Conduct

Collective Labour Agreement no. 38sexies links the prohibition of discrimination to a code of conduct which employers should ideally observe, 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 in order to eliminate factual inequalities.

Where preferential treatment applies, it must be explicitly stated, together with the reasons for that treatment.

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

Recruitment channels: these should 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 adjustments 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 (those that are relevant because of the nature or the conditions of the job).

Assessment: only the acquired competencies may be taken into account when assessing whether the relevant functional requirements are fulfilled. The employer shall ensure that any internal and/or external (even unconscious) bias does not play a part 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.

Notes: Employers shall ensure that any person involved in a selection process does not register information that would constitute discrimination, unless the information relates to preferential treatment in the context of a selection process or unless the registration of such information is required by law or unless certain accompanying measures have to be taken.

Complaints from the applicant: any applicant who submits a written, substantiated 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 trade union delegation, this will be informed annually of the complaints and the way in which they are handled.

The recruitment survey

Prior health assessment

For certain functions (safety functions, activities with well-defined risks, activities related to foodstuffs, etc.), the prevention adviser-medicine doctor must examine each employee who is hired.

The decision of the prevention advisor-doctor on the worker's suitability is communicated to the worker before he starts work.

Extension to other workers

On the initiative of specific categories of persons, the prior health assessment may be extended to all workers employed in the immediate vicinity of the workstation of a worker 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 with the aim of obtaining medical 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 made immediately.

Conclusion

Many of the rules mentioned above are well known: no gender discrimination, no discrimination based on nationality or race, etc.

An employer's freedom of recruitment 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, as non-compliance can have far-reaching consequences for the company. Both legally (civil and criminal penalties) 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!