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Temporary unemployment and and incapacity for work : Labour Tribunal adopts a surprising position

Newsflash
Collective employment relations

In order to be entitled to unemployment benefits, the employee has to be capable of working. When an employee is incapacitated for work during a period of temporary unemployment, he will be entitled either to sickness benefits through the health insurance fund or to guaranteed pay at the expense of the employer. The question of whether the employer owes guaranteed pay in this situation arose as a result of the frequently applied “corona force majeure” unemployment. The Antwerp Labour Tribunal adopted a surprising position on this issue.

An employee who is ill during a period of temporary unemployment is not entitled to unemployment benefits. He/She will then receive sickness benefits from the health insurance fund or guaranteed pay from the employer. The question as to which of the two payments the employee can claim is not always clear. The legislation does not provide uniform rules that apply to both blue- and white-collar workers.

In order to determine whether the employee is entitled to guaranteed pay, the following principle is generally used: the suspension ground that was established first takes precedence. In other words, if the employee is ill before it is established that he/she would be unemployed, then the employee is entitled to guaranteed pay.

This raises another question, namely, for which days the employee is entitled to guaranteed pay. For blue-collar workers, the answer can be found in Article 56 of the Employment Contracts Act. This article provides that there is only a right to guaranteed pay for the days on which the blue-collar worker actually should and could have worked, if he/she were not ill. This will again depend on whether there is:

  • full temporary unemployment, where the blue-collar workers do not perform any work at all; or
  • partial temporary unemployment, where unemployment days alternate with workdays.

In case of full temporary unemployment, the blue-collar worker is not entitled to guaranteed pay during the period of unemployment but is entitled to sickness benefits at the expense of the health insurance fund. In case of partial temporary unemployment, the unemployment planning has to be taken into account to determine whether a blue-collar worker is entitled to guaranteed pay:

  • for the planned unemployment days, the employee is entitled to sickness benefits at the expense of the mutual insurance fund;
  • for the planned workdays, the employer pays the guaranteed salary.

However, the relevant Article 56 of the Employment Contracts Act only refers to blue-collar workers and not to white-collar workers.

However, the FPS WASO and the NIHDI also applied this provision by analogy to white-collar workers. Following this position, the aforementioned mechanism was also applied to white-collar workers, in particular during the peak period of “corona force majeure” unemployment.

In a judgment of 20 July 2021, the Antwerp Labour Tribunal refused this extension to white-collar workers. The tribunal did confirm the principle of the chronology of the grounds for suspension, i.e., the principle stated above that the suspension ground that was established first takes precedence. However, the tribunal did not proceed to apply Article 56 of the Employment Contracts Act by analogy to white-collar workers.

Thus, a white-collar worker who became ill before the start of the temporary “corona force majeure” unemployment retains the right to guaranteed pay during the first 30 days of incapacity for work. This even applies if the white-collar worker would not be able to work during this period, for example, due to temporary force majeure.

Of course, this judgment is not only relevant with regard to the obligation of guaranteed pay due to illness during periods of “corona force majeure” unemployment which still exists today (for now, until 31 December 2021). This judgment is also relevant for future cases of overlap between incapacity for work and the “traditional” forms of temporary unemployment for white-collar workers. However, it remains to be seen whether the FPS WASO and the NIHDI will maintain their positions or whether they will align their positions with the judgment that has been issued.

Action point

When a white-collar worker becomes ill and afterwards a period of temporary unemployment follows within the company, it is advisable to assess the risk in view of this judgment. There is indeed a possibility that the white-collar worker, in addition to guaranteed pay for the days on which he/she was supposed to work, also claims guaranteed pay for days on which he/she was not supposed to work.