Personality protection

Notion

The employer must respect and protect the personality and health of his or her employees. This duty of the employer is particularly broad and continues even during a sabbatical.

Job interview

The employer's duty begins at the job interview.

The employer must respect the applicant's privacy. Questions about pregnancy, criminal records or health status may be permitted in exceptional cases if they are directly related to the job.

Searching for information about the candidate on the Internet can be problematic. Taking references from former employers is likely to infringe on the applicant's personality, unless the applicant consents.

Apprentices

The employer has an increased duty to protect the personality of young workers and apprentices, particularly during the job interview. The employer must ensure that they do not perform work or work schedules that could be harmful to their health. During the employment relationship, the employer must ensure that the apprentice is not exposed to bad influences within the company.

Occupational Health and Safety

The employer's obligation to ensure the safety of his or her employees in the workplace is particularly broad. The employer must ensure that employees are not exposed to extreme temperatures, take their breaks, wear safety equipment and are not exposed to passive smoke.

This obligation remains in place for company parties. When alcohol is involved, the employer may be held liable if it does not take measures to prevent accidents.

Love at work

Relationships and work rarely go together. The employer is tempted to fire one or the other of the employees in order to avoid the problems that can arise from disputes. He must be careful because in such a situation, he is intruding into their private lives. 

Burnout

When new hires are frozen or employees are sick, employees tend to work overtime. Managers sometimes work overtime to the detriment of their personal lives. These situations can lead to overwork or even burnout. The employer is obliged to remedy this.

Pandemic/Epidemic/Covid-19

During pandemics such as Covid-19, the employer must take measures to protect the health of his or her employees and limit the spread of disease. Particular attention must be paid to employees with fragile health. A vaccination duty to avoid the spread of the virus in the company remains however very delicate, even if it is about protecting the health of the employees.

Whether or not an employee chooses to be vaccinated against Covid-19 is a matter of personal freedom, guaranteed by the Federal Constitution. However, in the event of incapacity to work, the employer will only be obliged to pay wages if the incapacity to work is not attributable to the employee's fault. The question of whether an employee who refuses to be vaccinated by choice is entitled to his or her salary if he or she tests positive is a delicate one.

In the context of the Covid-19 pandemic, certain countries are particularly affected by this disease and constitute risk areas. In principle, employers cannot prohibit their employees from traveling to these countries. However, the employee will have to bear the consequences of such behavior alone.

Criminal offence

If the employer suspects an employee of stealing, he or she must investigate the matter before imposing sanctions on the employee. Failure to do so may result in unwarranted damage to the employee's professional reputation and hence result in the employer’s liability.

Drugs and alcohol

The use of alcohol or drugs in the workplace can seriously compromise the safety of employees. The employer is required to take appropriate measures.

But beware! The use of a drug test is subject to strict conditions of validity. Likewise, terminating an employee who is an alcoholic or a drug addict can be tricky.

Monitoring of workers

The installation of a monitoring system can affect the psychological health of employees, who may sometimes feel spied upon. It is imperative that the employer follow a specific procedure in order not to infringe on the personality of its employees.

Recording in the workplace

It is sometimes tempting for an employee to discreetly record an evaluation interview or to film a superior about to commit an offence. Such recordings will, for the most part, infringe on the personality of the interlocutors and may constitute a criminal offence.

Right of access to personal files

The employer is required to collect personal and sometimes sensitive data on his or her employee. The latter has the right to access and obtain a copy of his or her personal file. The employer may sometimes, under certain conditions, refuse this access, in particular when the employee is seeking to gather evidence in view of a procedure against him or her.

Harassment/sexual harassment/workplace disputes

Harassment in the workplace can seriously damage the health of the employee who is the victim. The employer must take measures to prevent and put an end to such situations. Immediate dismissal of the harasser will sometimes be necessary.

In the event of labor disputes, the employer has a duty to help and assist his or her employees. In principle, he or she cannot dismiss any of the protagonists without first taking the appropriate measures.

In cases of mobbing or sexual harassment, it sometimes happens that the employee is unable to return to his or her job but is able to find a new job with another employer.

Is the employee protected from termination at an inopportune juncture?  The Federal Court has decided this delicate question! However, such a dismissal is risky and will probably be qualified as wrongful if the employer has not taken adequate measures.

Wrongful dismissal

A dismissal for a reason inherent to the employee's personality, such as his character or pregnancy, is likely to be qualified as wrongful.

The employer must be more considerate of his or her older workers. In principle, they should give them a warning before dismissing them.

Religion in the workplace

In principle, the employer must respect the religious freedom of his or her employee. However, this freedom may sometimes be in conflict with the legitimate interests of the employer, in particular when the wearing of a headscarf may disturb the company's customers or when the employee is regularly absent for prayer.

Work attire

The dress of an employee is part of his or her personality. Employers can limit the extravagance of their employees when it is important to the company's image or to the prevention of accidents. The employer must issue directives, in particular to prevent sexual harassment.

Gratification

In principle, the employer is free to decide whether or not to grant a gratification to a certain employee. If an employer pays a gratification to most of his or her employees but refuses to give a gratification to a particular employee without giving relevant reasons, he or she risks infringing on the employee's personality.

Holiday

In order to protect the health of employees, the employer cannot replace holiday time with financial compensation. The situation is different when the employment contract is terminated.

Discrimination at work

Discrimination occurs when people are treated differently for unjustified reasons. This discrimination can take place during the job interview, at the salary level, for promotion or during a dismissal and is illegal.

Release from work

In principle, the employer is free to release the employee from his or her obligation to work upon dismissal, in particular if he fears that the employee will damage relations with customers. In very specific cases, this release affects the employee's personality.

Work certificate

The employer must draft the work certificate in a manner that is sympathetic to the employee. Failure to do so may result in liability.

The employer may not use the work certificate as a means of pressure, for example to get the employee to waive any legal action.