Belgium Recruitment in the new normal

The situation over the last few months has introduced or accelerated many changes in recruitment and working patterns in Belgium and it is important to be aware of the many obligations that result from these changes

Environmental, Social and Governance (ESG) impact is playing an increasingly important role in corporations and is high on the agenda in board rooms these days. This reduces reputational risk but also helps attract young talent that is more focused on the environment, diversity, and inclusion and also looking for a sustainable work environment.

The question of how diverse and inclusive your workforce is (in terms of age, gender, sexual orientation, etc.) needs to be addressed from the outset when starting a recruitment cycle.

What the intentions of the company are in terms of teleworking is also key from the start. People like flexible working, but at the same time want to meet their colleagues and work in a collegial way.

DRAFTING THE JOB ADVERTISEMENT AND PROPOSING A STANDARD CV

In Belgium, the matter of diversity and discrimination in the employment relationship is subject to complex regulations at the federal, local and sectoral levels, creating a sensitive situation for an employer. Even an unintentional violation of these rules can result in severe penalties.

Since these rules apply from the very beginning of the recruitment process, it is essential that the employer be particularly attentive to the various applicable obligations (e.g. language, specific mentions of qualifications, neutrality, etc.) when drafting the job advertisement.

It is also advisable that the employer sets up (via its website) a "standardized" CV form to be filled in by potential candidates.

Such standardized CVs help to avoid bias in the recruitment process and the potential exclusion of candidates based on personal criteria protected by the anti-discrimination regulations (such as marital status, age, or ethnicity).

According to the General Data Protection Regulation (GDPR), only personal data which are strictly necessary for the position and the selection process of candidates can be collected and recorded. Moreover, the employer must have a clear privacy policy in place regarding the processing of personal data of job applicants and potential candidates to inform candidates, among others, of the storage methods for the data communicated as part of the selection process.

ARTIFICIAL INTELLIGENCE AND PROFILING

The use of solutions using artificial intelligence (AI) in the form of software, algorithms, or automated tests allows employers to save time and resources in the early stages of the recruitment process (sourcing, matching and scoring of profiles), especially when there are many applications for a position.

European legislation increasingly tends to regulate the use of such AI solutions. In this regard, it should be noted that a new European regulation on artificial intelligence is about to be adopted. This new European regulation will classify the use of artificial intelligence in the employment relationship (including in the recruitment process) as "high risk" since those systems "may appreciably impact future career prospects and livelihoods of these persons". This means that AI solutions developed for the recruitment process will need to comply with strict obligations.

In principle, it is also prohibited for an employer to make individual decisions producing legal effects (e.g. recruitment) solely on the basis of an automated process (e.g. profiling), except with the explicit consent of the candidate or if such profiling is necessary for the conclusion or performance of the contract.

WHAT DATA MAY COMPANIES COLLECT AS PART OF A DIVERSITY POLICY, WHICH CAN ALSO BE USED FOR RECRUITMENT PURPOSES?

Lately, more employers are asking their employees to voluntarily disclose personal information ("diversity monitoring"). This often involves surveys with questions about race, ethnicity, health, religion, sexual orientation, gender, gender identity or social origin.

According to the GDPR, the processing of sensitive personal data is in principle prohibited, unless the company can invoke a specific exception. The consent of the employees could be a legal ground, but taking into account the relationship of subordination between the employer and the employees, such consent could be challenged. Processing such data on an anonymous basis is probably the safest way to monitor the diversity, but it is important that the data cannot be attributed to someone and that anonymity prevails from the start.

BACKGROUND CHECKS

Background checks, unlike in the US or the UK, are strictly regulated in Belgium.

Asking for a copy of the extract of the judicial register for example is subject to strict conditions. In principle, it is only possible for certain limited professions. In this case, the extract of the criminal record, and the data derived from such extract, may only be stored by the employer for recruitment purposes.

Asking for a medical certificate is also not possible. Only for certain functions (such as medical staff) can this be required.

Calling previous employers, without the consent of the candidate, is not permitted. The new employer is only allowed to contact previous employers if the name of the company and a contact person with phone number has been provided by the candidate, such as in a CV or cover letter.

Personal data discovered on a candidate's Facebook profile may only be used in the recruitment process if it is pertinent to the job. For example, a person's sexual orientation, religion or possible pregnancy are off limits and cannot be taken into consideration. If the employer does take this into account during the recruitment process, there is a risk of discrimination claims.

As a general principle, you may only ask questions that relates directly to the job to be exercised. That is the reason why asking a for a copy of the last pay slip of the candidate is also not proportionate.

CONCLUDING AN EMPLOYMENT CONTRACT AND WORKING FROM ABROAD

In addition to its dramatic impact on people's lives around the globe, the current Covid-19 pandemic has also profoundly affected the employment relationship in general. For example, a newly-hired candidate may not yet be able to travel to their place of work in Belgium due to travel restrictions. In this case, parties could have to sign the employment contract electronically and the employee concerned could have to start working remotely (teleworking).

Under Belgian legislation, the possibility of concluding an employment contract electronically is limited to the use of an electronic signature created by the Belgian identity card or a qualified electronic signature device meeting certain technical standards.

Temporary agencies and temporary employees are exempted from this strict limitation. In their case, the electronic signature does not have to be qualified as long as it guarantees the identity of the parties, their consent to the content of the contract, and the integrity of the contract.

If an employee is forced to start working remotely due to travel restrictions, the employer must pay special attention to the following elements:

• In order to avoid any risk of double taxation and claims of arrears of social security contributions, or even the application of the labor legislation of the place where telework is performed, it is advised that the employee concerned establishes their tax residence and starts (tele)working in Belgium as soon as possible.

• The employer must also ensure that the mandatory working accident insurance coverage is immediately extended to the place of telework.

Furthermore, in order to settle the different aspects of telework performed in Belgium or abroad (including technical support, telework costs, health and safety or privacy concerns), Belgian legislation currently imposes (until further notice, and at the latest until 31 December 2021), the introduction of a telework policy which has to meet strict conditions and which must be communicated to the personnel.

CONCLUSION

The situation over the last few months has introduced or accelerated many changes in recruitment and working patterns in Belgium. It is important to be aware of the many obligations that result from these changes.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.