The Social Criminal Code updated and modified
- Leila Mstoian - Marcel Houben
- Employment Law
- SIOD , SIRS , wellbeing at work , harassment at work , risk analysis , global prevention plan , temporary work , smoking at work , DIMONA , occasional labour
The law of 29 February 2016 updating and modifying the Social Criminal Code and containing
miscellaneous provisions on Social Criminal Law (Belgian Official Gazette 21 April 2016) modifies
the Social Criminal Code. The aim is actualising the Social Criminal Code, taking into account the
evolutions since the adoption of the Code. The modifications entered into force on 1 May 2016.
The introduction of the Social Criminal Code has been treated in an other article on our website that you can read by clicking here.
Before the introduction of the Social Criminal Code the stipulations imposing criminal sanctions
in case of infringements of employment law and social security law, were scattered across various
By means of introducing the Social Criminal Code, the legislator has grouped the administrative and criminal punishment in one single code consisting of two parts, namely:
(i) "Book 1" which deals with prevention, establishment and punishment of violations in general; and
(ii) "Book 2" which deals with the infringements and their punishment in particular, that is all infringements of social law and the sanctions for each of the infringements.
The modification and actualisation of the Social Criminal Code was necessary in order to correct
a number of imperfections as well as to adapt it to new and modified provisions, which have been
introduced in the continuously evolving social law since the preparation of the draft of the Social
The changes implemented by the law of 29 February 2016, related to Book 1 as well as Book 2 of the Social Criminal Code.
The main changes related to Book 1 of the Social Criminal Code are the following:
The main changes to Book 2 of the Social Criminal Code focus on five themes:
Below we give a brief overview of some of the most important changes to Book 2 of the Social Criminal Code :
(i) Modifications regarding the wellbeing at work
The legislation regarding the wellbeing at work has been thoroughly modified in 2014.
Since 2014, the employer has to comply with the rules regarding the prevention of psychological risks at work, which could harm the psychic health condition of the employee (by way of examples: violence, harassment at work, undesired sexual behaviour, stress, burn-out, and others).
In doing so, the employer needs to use a risk analysis, which is then included in the global prevention plan of the company.
Before the changes of the Social Criminal Code, the employer who did not comply with the obligations regarding this matter, could only be held criminally liable under article 128 of the Social Criminal Code. For the remainder, the Social Criminal Code did not mention provisions on psychosocial risks.
As from now, the Social Criminal Code provides for the criminalisation in case of violation of a number obligations relating to psychosocial risks
Moreover, the coordinates of the prevention advisor, and as the case may be the person of confidence, who is specialised in the psychosocial aspects at work, need to be explicitly mentioned in the work regulations.
The new law also sanctions the violations regarding the wellbeing at work by the external prevention services. From now on, the external prevention services can directly be held criminally liable on the basis of the Social Criminal Code.
(ii) Temporary work
During the period in which the temporary worker is employed by the user, the latter is, as of now, placed on an equal footing as the employer with regard to compliance with the provisions on working time, legal holidays, Sunday rest, maternity protection and all other measures regarding health and safety at work.
Therefore, in the case of violations of these protective stipulations, the user himself shall from now on be criminally liable.
(iii) Smoking at work
The employer needs to guarantee the right to dispose of smoking free working areas by prohibiting smoking in working areas and areas of social facilities. He also needs to inform third parties and remove all elements that could instigate smoking. Under certain conditions, a smoking area can be provided for.
The violations of these provisions are henceforth penalised with a level 3 sanction. When causing health damage or a workaccident, they are penalised with a level 4 sanction.
(iv) Immediate declaration of employment
The modified Social Criminal Code introduces additional sanctions for violations of the obligations of the employer regarding the immediate declaration of employment (DIMONA).
The additional sanctions are related to both infractions of the general DIMONA for the ordinary employees, as well as to violations of the obligations relating to the DIMONA-declaration for occasional workers in the farming sector, the horticulture and the “horeca” sector.
Violations of the DIMONA-rules are penalised with level 4 sanctions.
A new sanction is introduced for employees who "knowing and wilfully" perform work well knowing that this labour has not been declared. This violation is penalised with a level 1 sanction.
(v) Occasional labour
As of 1 May 2016, the Social Criminal Code provides a new level 2 sanction for employers of the farming sector, horticulture, the “horeca” sector and the temporary work sector who employ occasional labourers and who do not comply with the rules regarding the delivery and record-keeping of an occasional form.
The occasional form is a formal obligation for employers who benefit from beneficial social security rates with regard to the employment during a number of days per year of these employees.