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Late to work due to traffic disruption

15 September 2023 Miet Vanhegen Employers

Our Belgian roads are a lot busier again, and the start of the new school year certainly has something to do with this. In addition to the usual traffic jams, we expect additional traffic disruption as a result of some major roadworks. Of course, this will also affect employees who commute by car. What if an employee arrives late to work because of a traffic jam? Should you still pay them their wage?

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When are you entitled to a guaranteed daily wage?

Below, the arbeidsovereenkomstenwet (‘Employment Contracts Act’) lists a number of situations in which an employee can be absent from work while still being paid. In such cases, the employee will be entitled to the pay which would have been due to them if they had been able to complete the day’s work under normal circumstances. This is also known as a guaranteed daily wage.

Conditions for a guaranteed daily wage

However, a number of conditions must be met in order to be entitled to a guaranteed daily wage:

  • The employee must be fit for work at the time they go to work;
  • They should go to work under normal circumstances. The employee’s delay or absence must be due to an unforeseen cause and must happen to them on their way to work and not prior to departure;
  • The cause of the delay or absence must be independent of the will of the employee. The employee must, therefore, do everything within their power to avoid a delay or absence.

A guaranteed wage in the case of traffic disruption?

Yes: If you meet all of the above conditions, it is a case of force majeure. An unforeseen accident on the way to work, a sudden snowfall or an unforeseen slippery road surface can constitute force majeure.

No: if the delay is, however, a result of the usual traffic jams on the way to work or if the traffic jam was predictable or announced, it is not a case of force majeure. This can include roadworks which have been announced in advance.

Avoiding late arrival at work?

A good teleworking policy

Saving your employees from traffic congestion can be partly solved by having a good teleworking policy. Structural teleworking is becoming more established and the added value to all parties has now been proven. In the context of increasing traffic and roadworks, this can, therefore, be a good solution. Make sure that there are good arrangements with regard to the reimbursement of costs and availability and do not forget to amend employment contracts as well.

Flexible working hours

However, flexible working hours can also be a solution. With this, you establish set periods of work known as “core working hours”, during which your employees are required to be present, and flexible working hours, during which employees can themselves choose when to start and stop working. Note that, if you want to make use of flexible working hours, you will have to amend the labour regulations and provide a time-recording system.

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Written by Miet Vanhegen

Juridisch adviseur

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