Belgium – when contractual cherry-picking may be fruitless
In a recent blog, we wrote about the stringent language requirements in Belgian employment: how documents drafted in the wrong language are null and void but that this sanction of nullity may not be to the detriment of the employee, meaning that the employee can do a “cherry picking” of the provisions that are most beneficial to their case [here].
The ink of our words hadn’t fully dried yet when a first hopeful message came, perhaps pointing to a more pragmatic approach by the Belgian courts. In a decision from July 2019, which was published only recently, the Brussels Employment Court rejected the idea of cherrypicking within the same document. The employee had claimed a prorated bonus on the basis of a bonus plan drafted in English, but had asked the Employment Court to set aside on language grounds the provision in it that excluded a bonus payment if employment was terminated before the end of the reference period, as had been hers. To allow cherrypicking, ruled the Brussels Court, would allow the employee to claim benefits she would not have been entitled to if the plan had been drafted in the correct language.
Now we all know one swallow does not a summer make. So we were pleased to see the same reasoning recently confirmed by the Antwerp Employment Court. In a case where the employee himself had adduced bonus letters (drafted in English) to claim a bonus payment, the Court ruled that in its view, the Flemish Decree on the use of languages does not allow a partial nullity of the bonus letter, the content of which formed one coherent whole.
Although the decisions are to be applauded for their pragmatic approach to overly rigid language legislation, caution is still advised. These decisions reject the idea of cherrypicking within one and the same document, but they turn very much on their own facts (in particular, that the employee wished to rely on them, at least in part), and they do not take away from the fact that entire documents may still be declared null and void if drafted in the wrong language. So if the bonus promise were in one document in the “right” language, it would still be entirely possible for the employee to exclude inconvenient conditions and restrictions to it if they were contained in another document not in that language.
The rule of thumb for employers in Belgium therefore remains the same: if a document contains provisions which you may wish to invoke against the employee in a later stage, make sure the document is drafted in or translated into the local language. Forewarned is forearmed.