Minding Your Language in Belgian Employment Contracts
While we Belgians are generally known for being quite flexible in our use of foreign languages, we can be real sticklers when it comes to the use of language in the employment relationship.
The rules are as simple as they are harsh: all social relations (including employment) and the documentation related thereto is to be drafted in Dutch (Flemish region), in French (Walloon region) or in the employee’s mother tongue (French or Dutch) (Brussels region), at the risk of being null and void. The exception is the Brussels region, where the only sanction is the obligation to provide a translation.
The rules are unforgiving: the employee may be able to cite sonnets by the Bard of Avon, but when it comes to his employment documents, the law and the Employment Tribunals consider him to be ignorant of any language but that of the region where the work is performed.
In the Dutch-speaking region, the legislation was amended in 2014 following a decision of the European Court of Justice, which said that the legislation constitutes a restriction on freedom of movement for workers. Since then, for employment agreements, an additional valid version can be drafted in an official language of one of the Member States of the EEA which is understood by both employer and employee if the employee is domiciled on the territory of another Member State or has made use of his right to free movement in accordance with EU law. Don’t be fooled however : this is only an additional version – the main version is still to be drafted in Dutch and it would be on that version that any litigation would be based.
To make matters worse, the nullity of the document drafted in the wrong language may not be to the detriment of the employee. Let’s assume for example that a bonus plan, drafted in English, determines that an employee must still be in service at the time of pay-out. An employee resigns before pay-out. He will still be able to claim the bonus, but he can disregard the condition of continued service because this condition is drafted in English. The employee may indeed pick and choose: use the interesting provisions, discard the unfavourable ones.
In practice we see that employers are generally mindful of these stringent rules when the employee enters into service and when the employment contract is terminated, but that attention can slip away while the employee is in service. Bonus plans, evaluation forms, warning letters, non-disclosure agreements … very often still they are only drafted in English and that makes reliance on them by the employer very difficult. The converse is not true – the employee is fully entitled to enforce English-only clauses against the employer.
Does this mean that every document has to be drafted in Dutch or French respectively? Well no, the answer depends on the content of the document. Simple rule of thumb: does the document include a message or provisions that may have to be enforced or invoked against the employee at a later point in time? If so, it is strongly recommended to draft the document in the correct language. If the letter is purely informative or business-related, the language will most likely not be a real concern.