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Disciplinary sanctions in the private sector

Verified 12 November 2021 - Directorate for Legal and Administrative Information (Prime Minister)

In certain situations, the employee's behavior may constitute misconduct. The employer is then entitled to impose a disciplinary penalty on the employee. This penalty may go as far as dismissal. The employer must then follow a disciplinary procedure. The employee may challenge the disciplinary penalty.

A disciplinary penalty is any measure, other than verbal observations, taken by the employer as a result of an act of the employee considered by the employer to be at fault.

This measure may or may not immediately call into question the employee's presence in the company, his function, his career or his remuneration.

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There is no legal list of mistakes that could lead to a penalty.

In practice, the acts that may result in a penalty are:

  • Non-compliance with the rules of discipline laid down by the rules and regulations or by memo
  • Refusal to comply with employer order
  • Non-compliance with the obligation of discretion and loyalty
  • Criticism, insults, threats, violence
  • Errors or negligence in the workplace
  • Any act of bullying (sexual or moral) by an employee

An employee's fault may result, depending on the situation, in one of the following penalties:

FYI  

it is forbidden to impose a fine or any other financial penalty on the employee who has committed a fault.

A disciplinary penalty must be proportionate to the misconduct.

An oral remark is not considered to be a disciplinary sanction.

In company rules and regulations where an anti-dumping measure exists, the penalties applicable shall be those provided for in that Regulation only.

Warning  

the employer may not penalize the employee twice in a row for the same fault.

The employer may not penalize an employee in the following cases:

  • Discriminatory ground
  • Exercise of a fundamental freedom (freedom of expression, freedom of association...)
  • Testimony of acts of psychological or sexual harassment
  • Testimony of facts constituting a offense or a crime
  • Exercise of the right of withdrawal for serious and imminent danger
  • Alerting in the company
  • Performance of the duties of juror or citizen assessor
  • Refusal of an employee, on the grounds of his sexual orientation, to transfer to a country where homosexuality is a criminal offense
  • Exercise of the right to strike in accordance with the law

An employer who intends to penalize an employee must comply with the legal disciplinary procedure (or that provided for in the collective agreement).

The employer then takes the following action against the employee:

  • Or a heavy penalty, having an impact on the employment contract (dismissal, transfer, demotion, lay-off, reprimand with entry in the employee's file...)
  • Either a simple penalty, not affecting the contract (warning, written observation, reprimand without entry in the employee's file...)
Heavy penalty

The employer shall summon the employee to an interview by registered letter or by hand.

This letter must be sent within Maximum 2 months from the day on which the employer became aware of a fault.

The letter should specify the purpose, date, time and location of the interview.

The letter states that the employee may be assisted by a person of his choice, belonging to the company.

During the interview, the employer indicates the reasons for the penalty envisaged and collects the explanations of the employee.

The penalty decided by the employer shall be imposed as soon as possible 2 working days after the interview, and at the latest 1 month after.

The penalty shall be the subject of a written and reasoned decision addressed to the employee by registered letter or hand-delivered.

If the penalty is dismissal, the employer must follow the procedure specific to the dismissal on personal grounds.

Simple penalty

The employer is not obliged to summon the employee for an interview.

In the event of an interview, the employer shall summon the employee by registered letter or hand-delivered.

The letter should specify the purpose, date, time and location of the interview.

The letter states that the employee may be assisted by a person of his choice, belonging to the company.

During the interview, the employer indicates the reasons for the penalty envisaged and collects the explanations of the employee.

The sanction chosen may be notified by mail or by post, whether registered or not.

If the employee feels that he is being unjustly punished, he can refer the matter to the Labor Council (CPH) to challenge the sanction.

The employee must contact the CPH within a reasonable time in relation to the date of the decision on the disciplinary sanction.

The CPH may cancel a sanction in any of the following situations:

  • Rules and regulations It is not formally justified (e.g. demotion notified without prior interview, sanction not mentioned in the
  • It is not justified by the fault committed

If the penalty notified is dismissal for misconduct (actual and serious, serious or serious), the CPH may cancel the penalty in one of the following situations:

  • It is linked to one of the grounds prohibiting any sanction (discrimination, harassment, whistleblower...)
  • The employee shall receive protection in connection with her pregnancy
  • In the event of non-compliance with the procedure concerning the protection of an employee against dismissal

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