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Flexible working: what are the legal possibilities?

25 August 2021 Annelies Bries Employers

The corona pandemic has had a major impact on the work organisation. Flexible working has been a reality for many employers and employees in recent times, but it will continue to be an important theme in the future. According to an Acerta survey among employers, working independent of time and location is the most important HR theme for the next three years. With the new school year starting, that flexibility is often much needed by employees with school-age children. But what are the legal options? We'll provide an overview.

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1. Sliding working hours

Social legislation provides a legal framework for the use of sliding hours, giving your employee a certain flexibility in the start and end of the working day while respecting his or her weekly working hours.

Sliding timetables consist of basic times, which are fixed periods during which your employee must be present and available, and sliding times, which are variable periods during which your employee can determine the start and end of the working day as well as any breaks provided for. The sliding timetable is therefore not a timetable that is imposed and determined in advance. Of course, the employee must take the organisation of the company into account, and may not work more than 9 hours per day.

In order to make use of sliding working hours, you must provide for them in a company collective agreement or by amending the terms and conditions of employment. An extension of any existing regulation of flexible working hours should also follow the same route. In addition, a system of time monitoring must be in place in the company.

2. Catch-up rest for overtime

Some employees worked a lot of overtime during the corona crisis period. Usually, your employee should be able to take catch-up rest to  compensate forthe overtimeworked  at a later time. You could agree with your employee to take the accrued hours of catch-up rest in order to be at the school gate on time, or to spend Wednesday afternoons with the kids.

3. Career Savings

Via career savings, your employee can save up overtime and non-statutory holidays in order to take paid leave at a later date. For example, your employee can now catch up on the overtime he saved last year. 

Maybe you already have a career savings system? In that case, you could ask the employee to take the saved hours now in order to end his working day earlier or start later or to take care of the children on Wednesday afternoons. If your employee has not saved any hours yet, he will not be able to make use of them.

You can introduce career savings in your company via a collective labour agreement. However, entry is only possible in 'activated sectors'.  If your company is not part of these joint committees, you can still take action by activating your sector yourself.

4. Leave

Many employees still have a lot of holidays left over as a result of the corona pandemic, which they could use for this purpose. The employee may request to take certain days or hours of paid vacation. The time at which annual leave is taken must always be determined by mutual agreement between the employer and employee. Thus, the employee cannot impose his leave or give notice the day after his absence. If the leave is taken without prior permission, you can consider it an unauthorized absence.

5. Leave without pay

If your employee has exhausted his vacation days, he could request a day or a number of hours of leave without pay. He needs your approval for this too. If there is no such agreement, you can also assume an unjustified absence.

6. Parental leave

In order to arrive at the school gate on time, your employee can reduce hiscareer by 1/5 or 1/10 by making use of parental leave to take care of his child under the age of 12. The employer and employee may agree to spread the reduction (e.g. in the case of a 1/5 time credit 7.6 hours in a 38-hour week) over the working week, so that the employee can stop a little earlier each day. The rules on part-time work must be respected and the average reduced employment must be achieved within the reference period (in principle 3 months, extendible to 1 year) and in any case within the period for which the parental leave was requested.

If your employee wants to be absent on Wednesday afternoons to take care of the children, he can make use of the 1/10 parental leave. Unlike other forms of parental leave, 1/10 parental leave may be refused by the employer, in writing, within one month of the employee's request. However, if your full-time employee applies for 1/5 parental leave in order to be able to be absent all day on Wednesday, you cannot simply refuse their application. Postponing is sometimes possible.

In any case, your employee must respect a certain deadline for his application. The request for parental leave must be made between 3 and 2 months before the desired start date of the parental leave. If your employee is currently applying for parental leave to start in September, you can refuse to take parental leave (even if it is 1/5 parental leave). If you agree to this despite the fact that your employee did not respect the request period, it is best to put this in writing together with your employee.

7. Time credit

Your employee can ask to take1/2 or 1/5 time credit for taking care of his child under the age of 8 if he meets all the conditions. However, a 1/5 time credit must always be taken by working one day a week or two half-days less (unless an exception is made by collective agreement or in the labour regulations, but this is only possible in a limited number of cases). If your employee asks to take a 1/2 time credit, then the method of taking the time credit hours can be agreed upon. The rules on part-time work must be respected and the average reduced employment must be achieved within the reference period (in principle 3 months, extendible to 1 year) and in any case within the period for which the time credit was requested.

If your employee only wants to be absent on Wednesday afternoons using time credit, this would amount to a reduction of his career by 1/10. This possibility is not provided for in the context of time credit. You can therefore refuse such an application without further ado. However, if your employee applies for time credit for the whole day on Wednesday, this constitutes a reduction in career of 1/5, which is possible if all conditions are met.

What are your options as an employer?

If you are an employer with no more than 10 employees, you can oppose the application for time credit and refuse it. If you employ more than 10 employees, it is advisable in the first instance to check whether the employee meets all the conditions for time credit. If not, you can refuse the time credit.

One of the conditions is that your employee respects a correct application period. If you were employing up to 20 employees on 30 June 2018, then your employees should generally make their request for time credit 6 months prior to the desired start date. If you had more than 20 employees, this period is 3 months.

If your employee only applies now, he has not respected this deadline, and you could refuse the time credit on that basis. If you do agree to allow the time credit, you can deviate from the term by mutual agreement with your employee. It is best to put this in writing.

For both time credit and parental leave, there are still possibilities of postponement or refusal.

Companies with more than 10 employees

In order to avoid too many employees being absent at the same time in companies with more than 10 employees, a threshold and preference and planning mechanism apply. Once the total number of employees on time credit reaches the 5% threshold, the next employee to apply will have to wait until a spot becomes available. The threshold calculation is based on the number of employees you had on 30 June of the previous year.  This threshold only applies to time credit, and not to parental leave.

8. Telecommuting

During the period when measures were imposed to combat corona, teleworking was the norm. With the exception of Brussels, this is no longer the case in Flanders and Wallonia since 1 September. The existing legal frameworks concerning structural and occasional telework are revived. In both cases, the teleworker organises his/her own work within the framework of the working time applicable in the company. This means that the employee must perform the number of hours provided for in the work schedule, without having to strictly comply with the work schedule. For example, an employee could leave for an hour to pick up the kids if he works that hour later in the day. In order to avoid discussions and surprises, it is therefore appropriate and useful to formalize the necessary agreements in the written telework agreement, and you can ask them to be available at certain times.

9. Flemish training leave / educational leave

If your employee wants to follow training himself, he may be entitled to educational leave (Brussels and Walloon Regions) or Flemish educational leave. This gives your employees the right to be absent with retention of (limited) pay in order to follow an approved training course. For the 2021-2022 school year, a temporary joint right of initiative was established for Flemish training leave, whereby both employee and employer can propose a training course.

The Council of Ministers of 23 July 2021 also approved a 2% increase in the salary threshold for educational leave/Flemish training leave to EUR 3,047 gross per month for the 2021 - 2022 school year. This amount is only definitive after publication of the Royal Decree in the Belgian Official Gazette.

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Written by Annelies Bries

Legal advisor at Acerta

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