New Belgian Act introduces obligation to appoint person of trust

However, until now, this appointment was not mandatory. It was only required if all the employee representatives on the Health and Safety Committee (HSC) requested it.

New legal obligation

The government wishes to increase the presence of persons of trust in companies by making the appointment of such a person mandatory in companies with at least 50 employees.

The Belgian Act introducing this obligation was published on 23 November 2023 (the Act). From 1 December 2023, organisations with at least 50 employees will have to appoint one or more persons of trust after obtaining the prior agreement of all the employee representatives on the HSC.

As was already the case, the employer must aim for consensus on the identity of the appointee and must first obtain the agreement of all the employee representatives on the HSC. If there is no agreement, the inspection services will intervene and try to reconcile the parties. If the parties cannot be reconciled, the inspection services will issue an opinion, and the employer takes the final decision leading to the appointment of a person of trust. If the employer does not follow the opinion of the inspection services, the employer must inform the HSC of the reasons for this diversion. When there is no HSC in the company, the members of the trade union delegation carry out this task, and in the absence of a trade union delegation, the employees themselves in accordance with the wellbeing rules.

Conditions and exceptions

This appointment is not mandatory for an employer who employs less than 50 employees, unless all the members of the trade union delegation, or in the absence of a trade union delegation, all the employees, request such appointment to be made.

At least one of the persons of trust must belong to the staff of the employer if:

• the employer employs at least 50 employees; or
• the employer employs at least 20 employees and relies on a prevention advisor from an external prevention service.

This guarantees that the employees will always have access to a person of trust who has sufficient knowledge of the structure, functioning, and culture of the company.

The tasks of a person of trust may also be performed by the internal prevention adviser unless:

• it is a company with less than 20 employees, and the employer exercises the function of internal prevention adviser; or
• the internal prevention advisor, or all the members of the trade union delegation, or in the absence of a trade union delegation, all the employees do not agree with the internal prevention advisor performing these tasks.

Sanctions

An employer who does not comply with its legal obligation regarding the person of trust may be prosecuted, with sanctions being either a criminal fine of between EUR 400.00 and EUR 4,000.00 or an administrative fine of between EUR 200.00 and EUR 2,000.00.

Practical implications

The Act does not change the existing practical implications for employers concerning the role, training and protection of persons of trust, but we would like to remind you of these briefly:

• The person of trust assists in preventing and resolving psychosocial risks at work. In particular, they play an important role in the informal procedure in case of psychosocial risks: employees can file a request for an informal psychosocial intervention with the person of trust, in order to find a solution in an informal way. However, the person of trust is not involved in the formal procedure, which is reserved for the prevention adviser for psychosocial aspects.
• Every person of trust appointed since 2014 must complete a 5-day training programme within two years of their appointment. The costs associated with the training programme as well as the travel expenses are to be borne by the employer. The time spent on this training programme must be remunerated as working time.
• The person of trust must meet certain legal requirements to ensure their impartiality and credibility. This means that they cannot be a prevention advisor - occupational physician, a member of the leading personnel, or a representative of the employer or the employees on the works council or the HSC. They also cannot be a member of the trade union delegation.
• If the employer wishes to remove the person of trust from their function, strict conditions apply.
• The person of trust does not enjoy specific dismissal protection but must not face any disadvantage from their activities as a person of trust.

What’s next?

The Act aims to strengthen the presence of persons of trust in companies, as a preventive and supportive measure to deal with psychosocial risks at work. Employers with at least 50 employees (and, in exceptional cases, employers with less than 50 employees) will have to appoint a person of trust after reaching an agreement with the employee representatives on the HSC and ensure that they receive the necessary training to perform their tasks. The contact details of the person of trust must be reflected in the work regulations.

If you have any questions or need any assistance regarding the appointment of a person of trust in your company, please contact us.