Employees legally protected against all psycho-social risks

Since 1 September 2014, a new legal framework has broadened the scope of the previous regulation. It is no longer limited to violence, bullying and sexual harassment at work but employees have the right to be protected against all psychosocial risks leading to burn-out or nervous breakdown. These risks can have an impact on individual level (depression, burn-out) but also on a collective level (conflicts, negative atmosphere at work) and result in more work accidents, lower production and declining quality of the output.

Stress is increasingly recognized as a key reason behind absenteeism at work, contributing to at least half of all work days lost (an estimated average cost of EUR 900 per day per employee). The call for a new regulatory framework  became quite urgent. Belgium is considered as a pioneer in this context, being one of the only countries where burn-out is mentioned as forming part of psycho-social risks.

The aim of the new regulation is to implement a preventive and protective policy as well as procedures for all psychosocial risks at work.

New definition of “psycho-social risks”

The new legislation defines psycho-social risks as follows:

• the possibility that one or more employees suffer psychological damage
• which may or may not be accompanied with physical damage
• as a result of exposure to elements of
  • labor organization
  • content of work
  • working conditions
  • working circumstances
  • interpersonal relations at work

• on which the employer has an impact
• and which objectively are considered to be dangerous

Obligations for employers

In order to be compliant with the new legislation, employers must meet certain obligations. Incompliances determined by the Social Inspection may lead to substantial administrative or criminal prosecution.

Risk assessment a priori on a collective basis

Every employer needs to identify, determine and evaluate all possible situations which could lead to psychosocial risks at work.

Moreover, the employer is also obliged to take the necessary measures to prevent these risks and to limit the damage. This risk analysis and measures should then be evaluated at least once a year.

The employer will also have to perform the necessary analysis of a specific situation when this represents a danger at the request of a member of the hierarchy or at least one third of the employee representatives in the committee for prevention and protection at work.

Request for a psycho-social intervention by employees

Any employee who believes that he/she is suffering from psychological and/or physical damage, as a result of a psycho-social risk at work, needs to have the possibility to submit a request for intervention via an internal procedure. The new legislation offers the employee the choice between a formal or an informal procedure which he/she must be able to find in the work regulations.

Through the informal procedure, the employee may consult the psycho-social prevention advisor or the person of trust with a view of finding practical  solutions. If the employee does not wish to make use of the informal psychosocial intervention or if this procedure has not led to a solution, the employee may submit a request for formal psychosocial intervention. It is the  psycho-social prevention advisor who will consider the matter and advise the employer about the collective and individual measures to be taken.

Protection against dismissal by employer or other adverse actions

The employees who initiate the internal formal procedure for psycho-social intervention are also protected if it concerns  a case of  violence, bullying and sexual harassment at work. This means that the employer may not terminate the employment nor take any adverse action in the course of the employment for up to 12 months after the formal procedure has been initiated, unless the reasons for termination are unconnected to the employee’s claim. Non-compliance leads to the liability to pay  a lump indemnity of 6 months’ salary (or higher if the actual cost of the damage can be demonstrated). Also in case a complaint was filed, a court case was initiated against the employer (protection will apply till 3 months after the verdict can no longer be appealed) or in case the employee has given a testimony at the occasion of an inquiry initiated after the request for a formal psycho-social intervention.

Deadline of 1 March 2015 for adapting internal work rules!

Companies must include these new obligations in their internal work regulations before 1 March 2015, by specifying at least:

• The contact details and duties of the psycho-social prevention advisor and the person of trust
• The formal and informal procedures directly accessible to the employees internally