In a landmark decision dated 18 November 20241, the Belgian Supreme Court (Cour de cassation/Hof van Cassatie) ruled that the absence of a formal designation does not exclude an employee from the legal protection granted to prevention advisors. As long as the employee effectively carries out tasks associated with this role, they are entitled to the mandatory legal protection, even if the formal appointment procedure was not completed.
1. Protection against dismissal of internal prevention advisors: key considerations
The prevention advisor advises the employer on wellbeing legislation and assists all parties in applying the law on the wellbeing of workers. Every employer must appoint at least one internal prevention advisor. However, employers with fewer than 20 employees may perform this role themselves.
As prevention advisors must be able to perform their role independently, they are protected against both dismissal and removal from their prevention advisor function by the Act of 20 December 2002.
Any termination of their employment contract or removal from their function is subject to a specific procedure2.
The employer may only terminate the prevention advisor’s employment contract (or remove them from their function) for reasons unrelated to their independence, or due to their incompetence. In addition, the following procedure should be respected in case of dismissal:
- When an employer intends to dismiss a prevention advisor, he must simultaneously (i) notify the prevention advisor by registered letter of the reasons for the dismissal and (ii) seek the prior approval of the Committee for Prevention and Protection at Work, or, in its absence, the trade union delegation, or, if neither exists, the employees themselves, by registered letter, enclosing a copy of the letter sent to the prevention advisor.
- If approval is obtained, the employer may terminate the employment contract (in accordance with the general rules relating to the termination of an employment contract).
- If approval is refused or not provided within a reasonable period, the employer may not terminate the employment contract. If the employer still wishes to proceed, he must first consult the competent social auditor, who will attempt a conciliation. If unsuccessful, the auditor will issue an opinion by registered letter to the employer. The employer must then inform the relevant body within 30 days of this opinion and may only proceed with the dismissal after referring the matter to the labor courts.
If the employer fails to comply with the procedure or relies on unauthorised grounds, he must pay compensation to the prevention advisor equal to two or three years’ salary, depending on whether the advisor has less or more than 15 years of service in its role as prevention adviser.
The remuneration used as the basis for calculating this indemnity corresponds to the portion of the employee’s remuneration attributable to the prevention adviser role, in proportion to the time actually spent performing this function. It is therefore advisable to clearly specify in the employment contract (or an addendum) the time allocated to the prevention advisor tasks, in order to avoid any future disputes regarding the remuneration to be taken into account when calculating the compensation.
2. Functional approach to this protection: who qualifies in practice ?
In the case brought before the Supreme Court, an employer dismissed the head of an internal service for prevention and protection at work. Although the Committee for Prevention and Protection at Work had never formally approved his designation, the employee was effectively performing tasks typically assigned to a prevention advisor.
The employer argued that since the formal designation procedure had not been followed — due to the absence of the Committee’s approval —,the employee was not entitled to the legal protection granted to prevention advisor.
However, the Supreme Court ruled that an employee who de facto performs tasks normally assigned to a prevention advisor is entitled to this specific protection, even in the absence of a formal designation.
This interpretation by the Supreme Court significantly broadens the scope of the mandatory protection against dismissal of internal prevention advisors established by the Act of 20 December 2002. According to the case law, this protection also extends to employees who are entrusted with only part of the tasks generally associated with the role of prevention advisor.
3. Key takeaways
- Formal designation is not required: according to the Supreme Court, legal protection is based on actual tasks performed by the employee.
- Always identify whether an employee is de facto performing tasks typically assigned to a prevention advisor before considering dismissal or removal from their function;
- Strictly follow the legal procedure and avoid relying on unauthorised grounds : failure to comply may result in substantial compensation obligations.
- Document the scope of prevention advisor duties: clearly define in writing (e.g. in the employment contract or an addendum hereof) the proportion of working time dedicated to prevention advisor tasks.
[1] Cass., S.23.0005.N, 18 November 2024, R.W. 2024-25, 1188.
[2] However, this procedure does not apply in cases of dismissal for serious cause, company closure, collective dismissal, dismissal by the prevention advisor, or when the fixed-term employment contract simply expires.
If you have any questions or require assistance, feel free to contact the authors Alexis Ceuterick or Marie-Ysaline Lannoye.
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This newsletter is not a legal advice or a legal opinion. You should seek advice from a legal counsel of your choice before acting upon any of the information in this newsletter.
