Bringing the S in ESG

The increasing regulations on corporate sustainability policies and workforce-related compliance mean that conversations with a specific focus on the S in ESG are becoming increasingly important, not just for Legal and HR teams but for the C-suite as well.

We feel that employers will need to understand and adapt to these conversations very quickly in order to continue acting as responsible global citizens.

In this regard we are happy to share a copy of the new edition of EY’s Global Labour and Employment Law Strategic Guide, in which we survey legal regulations relating to ESG across more than 30 countries and to which Barbara François and Marie-Emilie Truyens contributed.

Health and safety at the workplace

In general, the employer, acting as a bonus pater familias, has an obligation to guarantee that employees are able to perform their work under the appropriate health and safety standards at work (Art 20, 2° of the Employment Contracts’ Act of 3 July 1978).

The most relevant regulation on health and safety is the Wellbeing Act of 4 August 1996 and the Code on Wellbeing at Work of 28 April 2017. The Wellbeing Act obliges employers to take all measures necessary to promote and guarantee the wellbeing of their employees at work.

The legislation on wellbeing at work defines principles, but not the means to achieve these principles. This grants flexibility to the employer. The employer must instruct employees regarding health and safety at work and set out measures to ensure compliance.

In addition to safety, some of the wellbeing obligations the employer faces that are covered in the Wellbeing Act include:

• psychosocial aspects
• ergonomics
• employment hygiene

Furthermore, the employer is required to publish several mandatory documents pertaining to health and safety at work. The most important ones are: 

• a five-year Global Prevention Plan (including the company’s risk analysis and the envisaged prevention activities, taking into account the size of the company and the nature of the risks 
• an annual Action Plan (derived from the five year Global Prevention Plan), 
• Work Rules (establishing the general working conditions and specific provisions regarding psychosocial risks at work).

Non-compliance with health and safety obligations can be sanctioned under the Belgian Social Penal Code, (if necessary) the Penal Code or Civil Code.

Non-Tolerance for Discrimination and Sexual Harassment

Discrimination

The Belgian Constitution guarantees the equality of Belgian citizens and the equality between men and women. It also guarantees the exercise of the rights and freedoms for all Belgian citizens without any discrimination.

The protected criteria under the Anti-Discrimination Act of 10 May 2007 (and related legislation) are the following: 

• Sex
• sexual orientation
• religious or philosophical belief 
• disability 
• marital status
• birth
• wealth
• political conviction 
• labor union membership
• age
• language
• current or future health condition
• physical or genetic characteristics
• social background 
• race 
• skin color
• nationality
• national or ethnic origin or descent

Direct or indirect discrimination based on one of the protected criteria is forbidden. If, in the framework of an employment relationship, direct or indirect discrimination is established, criminal or civil sanctions (or both) may be imposed.

Sexual harassment

The wellbeing regulation provides for specific rules regarding psychosocial risks at work (including sexual harassment). It is the employer’s responsibility to take the necessary measures to prevent psychosocial risks at work, to prevent the damage resulting from these risks and to limit this damage. 

An employee who is the victim of sexual harassment at work may claim compensation for the material and moral damage suffered. Further, under Belgian law, the claimant of sexual harassment, or any witness formally intervening, is protected from retaliation measures.

Equal Pay

The Anti-Discrimination Act of 10 May 2007 prohibits any discrimination in the framework of the employment relationship, including any concerning the remuneration received for work performed. 

Furthermore, Collective Bargaining Agreement (CBA) no. 25 sets out specific clauses that impose equal pay for men and women for equal or equivalent work. 

Belgium has taken additional measures to eliminate the gender pay gap. For example, the CBAs and function classification systems at industry level must be gender neutral. These measures seem to be effective since, according to the latest figures from the Belgian statistical office, the pay gap between men and women in Belgium has decreased from 10.2% in 2010 to 5.3% in 2020.

Minimum Wage

In principle, minimum hourly wages (for blue-collar employees) or minimum monthly wages (for white-collar employees) are fixed by industry in CBAs. However, these minimum wages may never be lower than the guaranteed average minimum monthly pay determined in a CBA concluded at national level.

Human Rights Due Diligence

At present, there is no specific regulation in Belgium establishing a human rights due diligence obligation for companies. 

However, a National Action Plan on Business & Human Rights was concluded in 2017. In the context of the National Action Plan. Various resources were developed to provide individuals and organizations with additional explanations on how human rights can be integrated into the functioning of organizations (e.g., the Human Rights Toolbox and a brochure). 

Link to EY Global Labor and Strategic Guide surveys legal regulations relating to ESG in more than 30 jurisdictions.