Protection against reprisals

Protected persons

The following workers are protected against reprisals by the employer:

workers who have submitted a formal request for psychosocial intervention due to acts of violence or moral or sexual harassment at work to the Prevention Advisor for psychosocial aspects.

If a worker withdraws their request for intervention during the proceedings, this does not mean that their protection ends. The applicant has dared to express their problem in the company, so the risk of reprisals is still present. Furthermore, the withdrawal of the request does not have a retroactive effect, so the request cannot be considered as never having existed.
workers who have submitted a complaint to the Supervision of Well-being at Work inspection service for one of the following reasons:
To enjoy protection, the worker must indicate in the complaint which case applies to them.
- the employer has not designated a Prevention Advisor for psychosocial aspects.
- the employer has not put in place an internal legal procedure.
- according to the worker, the handling of the formal request for intervention did not put an end to the acts of violence or moral or sexual harassment.
- according to the worker, the internal procedure was not applied in accordance with the law.

In the first two situations, the worker was unable to use the internal procedure because there was no Prevention Advisor for psychosocial aspects or because there was no internal procedure or this procedure was not legal. To enjoy protection, the situation must not only be included in the complaint, it must also be fulfilled in form. For example, if the worker states in the complaint that there is no designated Prevention Advisor, and that they have experienced harm after submitting this complaint, they will not be entitled to protection and indemnity from the court if it is proved that there was a Prevention Advisor at the time the complaint was submitted.

The third and fourth reasons apply to cases where the worker has used the internal procedure but believes that it did not put an end to the acts or was not applied in accordance with the law. 'According to the worker' means that the worker is entitled to be wrong and that they have protection even if it is in fact demonstrated that the procedure did put an end to the acts or was applied legally.

The worker still has the right to directly submit a complaint to the inspection service, but only workers in one of these four cases will be protected against reprisals.

workers who have submitted a complaint to the police, the public ministry or the investigating judge for one of the following reasons:
- the employer has not designated a Prevention Advisor for psychosocial aspects.
- the employer has not put in place an legal internal procedure.
- according to the worker, the handling of the formal request for intervention did not put an end to the acts of violence or moral or sexual harassment.
- according to the worker, the internal procedure was not applied in accordance with the law.
- The internal procedure is not appropriate given the seriousness of the acts to which the worker was subjected.

To enjoy protection, the worker must indicate in their complaint which of the cases applies to them.

For the first four reasons, they should refer to the explanation above on complaints submitted to the inspection service.

As with these complaints, the worker can always directly submit a complaint to the police, the public ministry or the investigating judge without being in one of these cases, but they then do not enjoy protection against reprisals.

The fifth reason applies to workers who have suffered serious acts (e.g. severe violence, rape, assault and battery, inhumane treatment). In these cases, it is clear that the negotiated response proposed by the internal company procedure is not appropriate. It is preferable to go directly to the legal authorities. Protection then starts on receipt of the complaint in the court.

If, for example, the worker is dismissed after submitting such a complaint to the police and claims protection compensation from the court, the judge will decide whether the facts are sufficiently serious to render the internal procedure inappropriate and thus whether or not the worker is entitled to protection compensation.

workers who take legal action (or for whom action is taken) to invoke their rights to protection against violence and moral or sexual harassment at work;
workers who have been direct witnesses in the investigation of a formal request for psychosocial intervention due to acts of violence or moral or sexual harassment at work, and those who have appeared as legal witnesses .

Nature of the protection

The employer cannot end the working relationship of a worker protected from reprisals due to their actions.

Nor can the employer take harmful measures against this protected worker after the end of the working relationship. This means that they cannot for example refuse to give references to future employers of the former worker for the sole reason that they submitted a formal request for psychosocial intervention due to acts of violence, or moral or sexual harassment at work.

The employer can also not take harmful measures during the working relationship. For example, they cannot refuse to provide training as a reprisal against the worker's request for intervention.

However, the employer must take measures to put an end to the acts of violence or moral or sexual harassment at work. In this context, they must be able to change the working conditions of the worker who submitted the request if this proves necessary.

They can only do this if these measures are reasonable and proportionate, insofar as there is no other possible appropriate solution that creates less of an inconvenience for the worker who took these steps. For example, it may prove necessary to change the schedule of the worker in question (if this is not possible, to change that of the person under suspicion) so that they are no longer in contact with the person harassing them. These measures may be considered proportionate and reasonable in light of the specific facts of the case.

The reasons and justifications for breaking the working relationship or a measure taken within 12 months of receipt of the request, testimony or external complaint may only have to be demonstrated later by the employer in front of the judge. The law has no prior procedure for checking these reasons and justifications.

Starting point of the protection

Formal request for psychosocial intervention due to acts of violence or moral or sexual harassment at work

The protection against reprisals starts on receipt of the formal request for psychosocial intervention due to acts of violence or moral or sexual harassment at work by the Prevention Advisor for psychosocial aspects or the external service (e.g. the secretariat), provided that the request has been accepted.

The request must be delivered in person or by registered letter so that the date of receipt can be stated with certainty. If it is delivered in person to the Prevention Advisor for psychosocial aspects or the external service, the recipient must make a copy, which they will sign and give back to the applicant. This copy acts as an advice of receipt. When the request is sent by registered letter, it is deemed to have been received on the third working day following its date of dispatch.

Complaint to the Supervision of Well-being at Work inspection service, the police, the labour inspectorate or the investigating judge

The protection starts on receipt of the complaint by the inspection service, police, inspectorate or investigating judge, provided that the complaint meets the formal and substantive requirements set out by the legislation.

Information for the employer

The employer is informed of the protection after the acceptance of the request or after submission of the testimony by the Prevention Advisor for psychosocial aspects, or after receipt of the complaint (which meets the formal requirements) by the inspection service, police, labour inspectorate or investigating judge.

Request for reintegration

If the employer dismisses the protected worker or unilaterally changes their working conditions, the worker or workers' organisation to which they belong may ask for this worker to be reintegrated in the company in the conditions that applied before this dismissal or change.

This request for reintegration is not compulsory.

The request is made by registered letter within 30 days of the measure taken by the employer. The employer must take a position on this request within 30 days.

If the employer reintegrates the worker into the company or into their previous position, they are required to pay the salary lost due to the dismissal or change to the working conditions and to pay the employer and worker contributions relating to this salary.

Protection compensation

If the employer refuses to reintegrate the worker, the latter may claim compensation from the employment tribunal, equal to either a fixed amount corresponding to six months' gross salary, or to the damage actually suffered by the worker, with the worker being responsible for proving the extent of this damage.

The same compensation may be requested directly from the court if the worker chooses not to ask for reintegration or if the employer has taken other harmful measures against the protected worker instead of dismissal or the unilateral modification of their working conditions.

If the employer has terminated the working relationship or taken a harmful measure

within 12 months of:
- receipt of the request for intervention,
- receipt of the external complaint, or
- the submission of the testimony;
after the commencement of legal proceedings by the worker up to three months after the ruling has acquired the force of res judicata (i.e. when it is no longer open to appeal, namely one month after the notification of the ruling);

the employer is responsible for proving to the judge that:

the reason they terminated the working relationship is external to the request for intervention, complaint, testimony or legal action (e.g. by proving that the dismissal took place before the request for intervention, and that it was linked to the professional inadequacies of the worker); or
the measure taken was proportionate and reasonable (e.g. because it was recommended by the Prevention Advisor for psychosocial aspects, the measure taken in regard of the applicant was the only one appropriate for resolving the case) and its aim was to end the harassment.

Duration of the protection

The worker can launch legal action at any time to obtain protection compensation if they consider they have been subject to reprisals by their employer.

However, the burden of proof is reversed if the employer took the measures within 12 months of receiving the formal request for psychosocial intervention due to acts of violence or harassment, the submission of testimony or the receipt of an external complaint (i.e. to the inspection service, police, public ministry or investigating judge).

This means that it is the employer who has to prove to the judge that there were no reprisals.

After this deadline, the worker can still take legal action if they believe they have experienced reprisals (for example, they have been dismissed following a complaint to the police due to harassment), but they will have to prove this in order to obtain protection compensation.