Belgium: New anti-harassment legislation

Anti-harassment legislation passed by the Belgian parliament will shortly be enacted into law. The legislation puts in place both the means for dealing with violence and harassment at the workplace and a prevention plan designed to combat its existence. Additionally, the law places the burden of proof on the harasser to disprove any harassment allegations instead of on the victim to prove the allegations, as was previously the case.

Introduction

The new legislation will require all employers to take measures to protect their staff from violence, as well as moral harassment (bullying) and sexual harassment at work. They will also be required to introduce an annual anti-harassment programme, or a "prevention model". This must provide employees with the information they need to deal with any alleged claims of harassment, such as to whom their complaints should, in the first place, be addressed, and what procedures should then be followed. This plan may be supplemented with workplace agreements between the social partners that add details specifically adapted to local conditions. Employers are required to designate a prevention adviser, who may be a member of the company itself, if more than 50 people are employed, or who must be independent, in smaller companies of fewer than 50 people. This person must have appropriate academic qualifications and training. The post may not be filled by the company doctor. Additionally, the burden of proof that alleged harassment has not been committed will rest with the harasser (whether the employer or another employee) and any employees alleging harassment are protected from dismissal for the duration of the case.

Background

Bullying at the workplace appears to be an area of growing concern in Belgium. A recent study by the European Foundation for the Improvement of Living and Working Conditions¹ found that 11% of Belgian employees considered that they were victims of harassment or bullying at work, compared with the average EU figure of 9%. A study carried out in the Belgian civil service indicated that 54% of civil servants knew of cases of harassment at work and that 84% of the respondents considered that it constituted a "serious problem". Bullying at work can have serious consequences for the victim: the Belgian trade union federation FGTB/ABVV suggests that one suicide in 10 is a consequence of this type of harassment.

The planned legislation originated in a non-government Bill, brought before the Belgian parliament by two senators in 2000, which was subsequently followed by a Bill brought by the employment minister Laurette Onkelinx in March 2001. She then commissioned a report on the draft legislation by the Belgian National Labour Council. According to the introduction to that report, the draft law relates to: "the protection of employees against violence, moral harassment [bullying] and sexual harassment as well as the protection of 'prevention advisers' [conseillers en prévention] carrying out their tasks." The law uses as its legal basis a number of European Directives, including the new general framework Directive for equal treatment in employment and occupation (2000/78/EC), which is providing the basis for wide-ranging anti-discrimination legislation elsewhere in Europe. The new law is to be enacted through modifications to 1996 health and safety at work legislation, as well as through changes to conditions in the judicial code relating to protection from violence. The measures were approved by the lower house of the Belgian parliament at the end of February 2002 and the upper house social commission then approved them unanimously, opening the way for implementation of the new law later this year.

Details of the law

The new law contains a two-part approach to combating harassment at the workplace (bullying). The two parts combine a strategy of prevention and information with one of putting an end to harassment that has taken place.

Prevention and information

Henceforth, companies will be required to put in place a prevention model, which should form part of an annual plan designed to combat bullying. Employees should be informed of this by its inclusion in the workplace rules (réglement de travail), or by some other means if such rules are not in place.

The prevention plan will introduce to the workplace designated people to whom employees can turn if they wish to make a complaint about what they perceive as bullying behaviour, sexual harassment or violent behaviour. The plan will also provide a procedure by which this may be done.

Companies will be required to appoint a professional prevention adviser who holds academic qualifications in the area of the psycho-social aspects of work. In companies with fewer than 50 employees, this post must be filled by an external adviser. Under no conditions may this role be combined with that of company doctor. Where an internal prevention adviser is appointed, this must be done with the agreement of the company's safety committee. The adviser has to be allowed to carry out their tasks without any interference from the employer. Companies may also appoint one or more assistants to the prevention adviser, this being a person in whom the victim may place their trust (personne de confiance). The assistant is not required to hold any academic qualifications in the area of the psycho-social aspects of work, unlike the prevention adviser, but they also do not have any powers to take action on behalf of the employee - in contrast to the prevention adviser.

Cases of harassment

Employers must draw up, and include in their workplace rules, a procedure to be followed in the case of complaints of harassment. If an employee believes they are a victim of harassment, they may take their case to a prevention adviser or to the "person of trust" (the adviser's assistant). The prevention adviser and the person of trust must take the matter seriously and initially attempt to resolve the problem through mediation and conciliation internally. If this proves unsuccessful, they will pass the case on to the employment ministry's medical inspectorate. If this does not result in a solution, the case may be referred to an employment tribunal.

The burden of proof in cases of alleged harassment will rest with the harasser, instead of it being incumbent on the victim to prove that the alleged harassment has taken place. For their part, employees will be obliged to participate fully in the prevention policy, not commit acts of violence, and not make improper use of the grievance procedure.

The law allows for protection from dismissal connected with the harassment allegations for the victim and any witnesses. Should the employer wrongfully dismiss the alleged victim or any witnesses, they will either have to re-engage the employee or the witness or pay compensation of six months' wages.

Reactions from the social partners

While unions generally welcome the legislation, the employers' associations consider that it has significant design flaws. Although they support the principle of the need to address harassment at the workplace, and acknowledge that the problem exists, they do not support the proposed legislation in its entirety. They feel that it is not adapted to the needs of business or of labour relations at the workplace. They raised a number of points during the concertation talks at the National Labour Council, and they also addressed an open letter to the government, requesting the removal or amendment of certain clauses before the law is finally passed.

In general, the employers consider the new system to be too legalistic, saying that it will create an unacceptable juridicalisation of the entire process, as well as potentially opening the floodgates for a great many cases to be brought by employees now that the burden of proof rests with the harasser to disprove the allegations. The employers also feel that the legislation will incur too many costs, in particular with regard to the appointment of a professional prevention adviser. They maintain that the company doctor should be permitted to carry out the functions of the prevention adviser. They have also expressed the opinion that the legislation may make matters worse in some cases.

¹"Third European survey on working conditions 2000", European Foundation for the Improvement of Living and Working Conditions, Luxembourg, 2001.