Work-life balance for parents and carers: what is changing?

The transposition of Directive (EU) 2019/1158 on work-life balance for parents and carers, in addition to the introduction of flexible working arrangements, as regulated by Collective Bargaining Agreement No. 162, also entails a number of changes in the area of special leave and the dismissal protection these leaves entail.

The Act of 7 October 2022 and the Royal Decree of 7 October 2022 provide for the further transposition of the Directive and enter into force on 10 November 2022.

Carers’ leave

At present, employees can request a suspension of the employment contract for compelling reasons and for 10 days per year. This “leave for urgent reasons” or “family leave” is in principle unpaid, although employer and employee may agree otherwise. A compelling reason is defined as any unforeseen event, unrelated to work, which requires the urgent and necessary intervention of the employee, insofar as the execution of the employment contract makes this intervention impossible. 

With the Act of 7 October 2022, the legislator introduces a new form of “carers’ leave” intended to provide for personal care and support to a family member or family member who needs significant care or support for a serious medical reason. A family member is any person living with the employee. Family members include, also, the employee’s parents and children.

Employees are entitled to up to 5 days of carers’ leave per calendar year, consecutive or not. The days of carers’ leave taken by the employee are “charged” to the leave for compelling reasons and are therefore by definition also unpaid. However, the Act does leave the possibility of providing an allowance for each day of carers’ leave taken by the employee through a Royal Decree (yet to be worked out).

The employee who wishes to exercise the right to carers’ leave must inform his/her employer in advance and, in order to justify his/her absence, must provide the employer as soon as possible with a certificate issued by the doctor treating the family member or relative in question, attesting to the family member’s need for care or support.

Maternity leave for co-mother in case of hospitalisation or death of mother

In case of the death or hospitalization of the mother, maternity leave can be converted into leave for the employee who is the father or co-parent. From now on, the Act also provides this possibility for the co‑mother.

Birth leave

Since 1 January 2021, employees are entitled to 15 days of paternity leave/birth leave. As from 1 January 2023, employees will be entitled to 20 days of leave for births occurring after 1 January 2023.

From now on, the term paternity leave will be replaced by the term birth leave.

Parental leave

To be entitled to parental leave, the employee who wants to apply must have a certain seniority within the company. Specifically, during the 15 months preceding the written request in which the employee indicates he /she wishes to exercise his/her right to parental leave, the employee must have been in service (based on an employment contract) of the employer for at least 12 months.

The Act of 7 October 2022 stipulates that, from now on, previous periods of employment that the employee has carried out with the employer as an interim worker will also be taken into account when calculating the seniority condition.

There are also certain changes concerning the application procedure. From now on, the absence of a decision by the employer will be considered as approval by the employer. The employer’s decision will have to be a motivated decision.

Whereas previously – for the postponement of taking parental leave – justified reasons related to the functioning of the company could still suffice, postponement is now only possible if taking parental leave would seriously disrupt the proper functioning of the company. In certain cases, the employer will only be able to invoke postponement if he offers alternatives that are fully or partially within the period requested by the employee.

After taking (unpaid) parental leave pursuant to CBA No. 64, the employee may take two more months of (paid) parental leave for the same child under the form of full suspension of performance of the employment contract.

Dismissal protection

• Dismissal protection in case of carers’ leave

The Act of 7 October 2022 not only provides for an opportunity for employees to take carers’ leave but at the same time introduces special dismissal protection for employees who exercise this right.

The employer may not terminate the employment contract during the protection period except for reasons not relates to the carers’ leave. The protection period begins when the employer is notified of the taking of carers’ leave and ends one month following the end of the leave.

The employee may request the employer to confirm him/her in writing the reasons for dismissal. It is up to the employer to prove that the dismissal is not related to the taking of the carers’ leave. If the employer fails to do so, a lump-sum indemnity of six months’ gross salary will be due.

• Increase of the protection indemnity

To be in line with dismissal protection for pregnancy and maternity leave, the protection indemnity in the context of birth leave and adoption leave will be increased from three to six months’ gross salary.

• Preparation for dismissal during the protection period is – as from now – equal to a dismissal

From now on, employees will also enjoy protection against dismissal following the protection period, in particular when the employer has already prepared the dismissal during the protection period.

Any act of the employer following the protection period which aims to unilaterally terminate the employment relationship and for which some preparation was made during the protection period, is equal to a dismissal during the protection period. Making the decision to terminate the contract during the protection period is also considered as preparation for dismissal.

This assimilation applies in the context of dismissal protection in case of (conversion of) maternity leave, maternity leave, birth leave, carers’ leave and career break (including parental leave).

• Extension of protection to fixed-term/interim contracts

If an employee, who is employed with a fixed-term contract and has informed his/her employer of the fact that he will take up birth or adoption leave, is confronted with non-renewal of his/her employment contract, the non-renewal is assumed to be related to the birth or adoption leave. The same protection is foreseen for interim in the event of non-renewal of their interim contract. In that case the user company is considered the employer.

The employee may request the employer to inform him/her in writing of the reasons for non-renewal of the employment contract. It is up to the employer to prove that the non-renewal of the contract in question is not related to the birth or adoption leave. If the employer fails to do so, a lump-sum indemnity of three months’ gross salary is due.

This special dismissal protection for fixed-term employment contracts and interim contracts also applies in case of pregnancy and conversion of maternity leave.

• Extension of the protection period of birth leave

Finally, the period during which the employee enjoys dismissal protection as a result of the birth leave is also extended.

Previously, the dismissal protection started from the written notification to the employer until 3 months following this notification.

The legislation is changed as follows: dismissal protection begins from the notification to the employer, and no later than the first day of the birth leave, and the protection period ends five months after the day of the birth.

Notice during periods of suspension

During certain periods when the employment contract is suspended (e.g., in case of incapacity for work), the employee may terminate the employment contract with a notice period, which can continue to run even during the suspension.

This possibility for the employee is now also provided during suspension periods in case of birth leave, leave for compelling reasons, carers’ leave and adoption leave.

Calculation of severance pay during period of reduction in work performance

If the employment contract was terminated during a period of reduced work performance (e.g., in the case of time credit), the severance payment had to be calculated based on the (reduced) salary to which the employee was effectively entitled at the time of the termination of the employment contract.

In the case of parental leave, the situation was different and the severance pay had to be calculated on the basis of the salary to which the employee would have been entitled if he/she had not reduced his/her work performance.

The (former) exception in case of parental leave is now extended to all periods of reduction of work performance. The Act of 7 October 2022 adds a new provision to the Employment Contracts Act stipulating that when an employment contract is terminated during a period of reduction of work performance, the severance pay must be calculated based on the salary to which the employee would have been entitled under his/her employment contract if he/she had not reduced his/her work performance.

Criminal sanctions

The Social Penal Code already provided for a sanction (level 2) for employers who did not respect the right to maternity and paternity leave (now: birth leave). Henceforth, maternity leave and paternity leave are now disconnected from one another.  

Whereas previously only the non-granting of paternity leave to an employee who was entitled to it was sanctioned, from now on non-compliance with the duration or conditions of birth leave will also be sanctioned. From now on, failure to grant converted maternity leave will also be sanctioned.

Finally, failure to grant carers’ leave to an employee who is entitled to it and failure to observe the duration or conditions of carers’ leave will also be sanctioned with a level 2 sanction.

Today, a level 2 sanction amounts to a fine of EUR 400 to EUR 4000. For each violation, the fine should be multiplied by the number of employees involved.

Action point

Be aware of the new rules in force as from 10 November 2022 on special leave systems, both in terms of their application and in terms of the protection against dismissal for these employees.

It is important to apply the (new) rules correctly, as failure to comply may result in criminal penalties.