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Disciplinary sanctions in the private sector

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

Additional cases ?

In the Public Service

In some situations, the employee's behaviour may be a fault. The employer is then entitled to impose a disciplinary sanction against the employee. This penalty can go up to dismissal. The employer must then follow a disciplinary procedure. The employee may challenge the disciplinary sanction.

A disciplinary sanction is any action, other than verbal observations, taken by the employer following an action by 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 or her position, career or remuneration.

There is no legal list of offences that could result in a penalty.

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

  • Non-compliance with the disciplinary rules laid down by rules and regulations or by memorandum
  • Refusal to comply with employer order
  • Non-compliance with duty of discretion and loyalty
  • Criticism, abuse, threats, violence
  • Errors or negligence in the work
  • Any act harassment (sexual or moral) by an employee

A mistake by the employee may result, depending on the situation, in one of the following penalties:

FYI  

no person shall impose a fine or other financial penalty on an employee who has committed an offence.

A disciplinary penalty must be proportionate to the offence committed.

An oral remark is not considered a disciplinary sanction.

In companies where a rules and regulations exists, the applicable sanctions are only those provided for in this Regulation.

Warning  

the employer cannot sanction the employee 2 times in a row for the same fault.

The employer cannot sanction an employee in the following cases:

  • Discriminatory ground
  • Exercise of fundamental freedom (freedom of expression, trade union freedom...)
  • Testimony of facts of sexual or moral harassment
  • Testimony of facts constituting offence or crime
  • Exercise right of withdrawal for serious and imminent danger
  • Alert Launch in the company
  • Exercise of juror or citizen
  • Refusal of the employee, by reason of his or her sexual orientation, to move to a state criminalising homosexuality
  • Exercise right to strike in accordance with the law

The employer who intends to punish the employee must follow the legal disciplinary procedure (or that provided for in collective agreement).

The employer then takes against the employee:

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

Heavy punishment

The employer calls the employee to a maintenance by registered letter or by hand.

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

The letter must specify the purpose, date, time and place of the interview.

The letter states that the employee may be assisted by a person of his or her choice, who belongs to the company.

During the interview, the employer indicates the reasons for the proposed penalty and collects the employee's explanations.

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

The penalty is the subject of a written and reasoned decision addressed to the employee by registered letter or by hand.

If the penalty imposed is termination, the employer must follow the procedure set out in termination for personal reasons.

Simple penalty

The employer is not obliged to call the employee to a meeting.

In case of maintenance, the employer summons the employee by registered letter or by hand.

The letter must specify the purpose, date, time and place of the interview.

The letter states that the employee may be assisted by a person of his or her choice, who belongs to the company.

During the interview, the employer indicates the reasons for the proposed penalty and collects the employee's explanations.

The sanction chosen may be notified by email or mail, whether recommended or not.

If the employee feels that he has been unfairly punished, he may to the Council of Prud'homme (CPH) to challenge the sanction.

The employee must contact the HPC within a reasonable time from the date of the disciplinary sanction decision.

The HPC may cancel a penalty in any of the following situations:

  • It is not justified in form (for example: demotion notified without prior maintenance, penalty not mentioned in rules and regulations)
  • It is not justified by the mistake made

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

  • It is linked to one of the grounds prohibiting any punishment (discrimination, harassment, whistleblower...)
  • The employee shall enjoy protection in connection with pregnancy
  • Failure to comply with the protection against dismissal