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Global employment briefing: Belgium, May 2013

  • Belgium
  • Employment law - HR E-Brief

23-05-2013

Illegally obtained evidence – a twist!

As a general principle of law, illegally obtained evidence must be ignored in court proceedings.

Belgium’s Supreme Court established an important exception to this principle in 2003 in criminal cases, provided certain criteria are met, and over the last 10 years, labour courts have also applied this exception to accept illegally obtained evidence in employment matters. This has meant that, under some circumstances, illegally obtained images, e-mails, etc, have been used in labour courts, for example to justify a dismissal for serious misconduct.

However, the Labour Court of Brussels has recently ruled that the 2003 Belgian Supreme Court decision referred to above is not relevant to employment cases. Consequently, illegally obtained evidence must always be disregarded in employment matters.

Although this is important case law, there may be more to come. The case will probably be appealed to the Belgian Supreme Court, whose ruling will clarify whether or not the case-law also applies to employment matters.

This is of particular relevance in the context of employers monitoring employees’ emails. Such monitoring is strictly regulated, but employers could, under the old case law, rely on illegally collected emails. In light of the latest ruling, employers should exercise caution and collect information about their employees legally if they wish to rely on it.

 


The Court of Justice of the European Union (“CJEU") rules on language restrictions

 

The CJEU’s judgment in Anton Las v. PSA Antwerp N.V. related to a Dutch citizen employed by a Belgian company. Under his employment contract, the employee was required to work primarily in Belgium while residing in the Netherlands. His employment contract was drafted in English and no translation had ever been provided.

Upon termination of his employment, the employee claimed that his employment contract was null and void based on the Decree of the Flemish Community of July 19th, 1973. This Decree provides that all official documents issued to employees from employers located in the Flemish Region must be drafted in Dutch.

The CJEU ruled that the requirement contained in the Decree has a dissuasive effect on non-Dutch-speaking employees or employers. As such, the restriction constitutes an unlawful restriction on the freedom of movement for workers.

The CJEU rejected the Belgian Government’s arguments that language restrictions are necessary to protect employees and to monitor compliance.

It concluded that, since parties to an EU-based cross-border employment contract will not necessarily have knowledge of the official language of the Member State concerned, a contract can be drafted in a language mutually agreed between the parties.

Similar legislation applies in the French speaking part of the country.

Belgium must now amend the Decree to take into account this recent CJEU decision.

 


For further information, please contact

 

Sylvie Cousin
Associate
+32 2 737 93 65
Sylviecousin@eversheds.be

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