Employers sometimes have no alternative but to impose a sanction on an employee. But in order to sanction an employee, an employer must comply with several basic rules. Employers who fail to do so risk having their imposed sanction declared invalid by the courts.
A sanction not specified in the work regulations cannot be imposed.
An employer may only impose a sanction if it is specified in the company work regulations. Suppose that an employer wishes to suspend an employee for 5 days without pay. However, in the work regulations – which may well have been drawn up a long time ago – it states that a suspension can only last 3 days. In this case it will not be possible to impose the sanction of 5 days’ suspension, even if this sanction is justified in light of the facts.
Proof that the employee has received the work regulations.
In the event of a dispute, the employer will need to prove that the employee has received a copy of the work regulations that are valid at the time. If the employer cannot provide such proof, the employee might claim that he or she is unaware of any work regulations (and by extension any possible sanctions). Consequently, it will not be possible to impose any sanctions on the employee.
Keep in mind the proportionality principle.
An employer is not allowed to impose any sanction he or she sees fit in the event of infringement by the employee. The proportionality principle must always be applied when an employer imposes a sanction on an employee. An employee has the right to take his or her case to the Labour Courts to argue that the sanction which has been imposed is out of proportion to the infringement. The Labour Court will then verify whether or not the employer has imposed a clearly unreasonable sanction.
Be careful not to use demotion as a sanction.
Even if it is specified in the work regulations that an employee can be demoted as a sanction, using such a sanction is inadvisable. It is not inconceivable that a demoted employee will argue that his or her function has been unilaterally modified. This implicitly equates to dismissal. The employee can argue that the employment contract has implicitly been terminated, for which severance pay could be claimed. Or, in the worst-case scenario, a protected status indemnity amounting to several years’ salary could be claimed, if for example the employee is a member of the works council.
A notice period of 1 working day to inform an employee.
Probably the biggest pitfall in imposing a sanction on an employee is the fact that it needs to be communicated to the employee at the latest on the next working day after the day the infringement has been confirmed. This extremely short period of 1 working day commences from the moment that a person who is authorised to impose sanctions is made aware of the infringement. It is therefore possible that the infringement occurs several weeks before the person authorised to impose sanctions is made aware of the fact. Subsequently this person authorised to impose sanctions must inform the employee of the sanction by the latest on the day after he or she has been made aware of the infringement. This very short period is stipulated in article 17 of the Work regulations law of 8 April 1965, under penalty of invalidity. If an employer does not comply with this short period for whatever reason, the employee will be able to go to the Labour Courts to have the sanction overturned. The Labour Courts would not hesitate to rule against the employer in this case. If the sanction was imposed too late, it will be declared as irrevocably invalid, regardless of the seriousness of the infringement committed by the employee.
The law will always take precedence.
It is sometimes specified in work regulations for example that a sanction must be imposed within 3 days at the latest. The employer may then assume that if the sanction is imposed within this period of 3 days, everything is fine. But this is not the case! Article 17 of the Work regulations law always takes precedence over the content of any individual work regulations. The Labour Courts will only take the legal term of 1 working day into consideration in deciding whether or not the sanction is legally valid.
Proof of notification.
Given that the Work regulations law stipulates that the employee must be notified of the sanction on the next working day, there is no guarantee that serving the employee with notification of the sanction by registered letter on the next working day will be sufficient. The employee will not actually receive this letter on the next working day after the employer has been made aware of the infringement, meaning that the legal requirement to notify the employee on the next working day will de facto not be respected. In accordance with the existing case-law of the Court of Cassation, it is not necessary for an employer to notify the employee of the sanction in writing on the next working day. The employer only needs to prove that he or she notified the employee of the sanction on the next working day. The employer can do this for example by having the employee sign a copy of the registered letter, in which the sanction is confirmed, for receipt. It is also important to formulate the registered letter in such a way that the letter is only a confirmation, for the sake of completeness, of the sanction which was imposed on the next working day, and not the actual notification of the sanction imposed on the employee.
It is best to first question the employee.
Although it is not an explicit legal obligation, it is highly recommended to question the employee before imposing any sanctions. This hearing should also take place at the latest on the next working day after becoming aware of the infringement. During the hearing, the employee should be immediately informed as to which sanction he or she will incur. It is not possible to simply inform the employee that he or she will receive a sanction, but that this will follow within a few days (for example after consultation with management or after further investigation of the facts).
Witnesses are important.
To be able to prove the content of this discussion at a later date, it is advisable for the employer to have at least 2 extra people present. For example, this could be a personnel director and a team representative. If necessary, these people can then draw up a declaration of what was said during the hearing. If possible, an employee can also be requested to sign a summary of the hearing, although in practice we observe that employees generally refuse to sign such documents.
Possible additional obligations for the employer.
Work regulations may work in the employee’s favour. It is possible that a procedure is stipulated in the work regulations with additional obligations for the employer, which must be fulfilled if a sanction is imposed on an employee. For example, the prior notification of the union representative. These additional obligations – as stipulated in the work regulations – must be meticulously respected by the employer, without exception. The a posteriori ruling of a Labour Court is also particularly strict in this regard. It is important to always keep in mind that an employer needs to prove that these obligations were respected if there are any subsequent disputes in the matter. That is why, in this example, it is advisable for the employer to notify the union representative by email (and not by telephone), or have the employee sign a document confirming that he or she does not wish to have union representation if this possibility was provided for in the work regulations.
After the sanction has been imposed, it must obligatorily be recorded in the relevant register. The registration of the sanction should be completed before the date of the next wage payment at the latest. There are no requirements as to the form in which this sanction register is kept. Any document or notebook can therefore be used as a sanction register. It is, however, obligatory to indicate the names of the employees involved, the date and the reason in the register, as well as the nature of the sanction and the amount of any possible fines. The employer must be able to present the register to the inspectorate, if they request to see it.