A social inspection may find several ways in which your business is not complying with the regulations. What kind of violations can be discovered? And what are the associated consequences and penalties? This article offers a clear overview.

Possible violations: four levels

Violations of employment law are divided into four levels:

• Level 1: minor violations (e.g. an employer who provides the RVA/ONEM (National Employment Office) with incorrect data about its employees’ career breaks, or fails to notify the Employment Law Supervision Service in the event of a deviation from the prohibition of night work by young employees).
• Level 2: violations of moderate seriousness (e.g. prohibited Sunday work, failure to give time off in lieu, illegal overtime, incorrect wage payments, unpaid solidarity contributions, lack of employment regulations).
• Level 3: serious violations (e.g. lack of work accident insurance, failure to organise social elections).
• Level 4: very serious violations (e.g. employment of workers without a valid residence permit, failure to immediately declare employment, illicit posting of workers (supplying temporary workers without accreditation), impeding a social inspection).

A list of all possible violations can be found in the Social Criminal Code.

Possible consequences and penalties

Depending on the nature of the violation or violations, there may be various consequences:

Warning

 If the violation consists only of minor errors, you may escape penalty or be given a warning.

Rectification

If there are multiple irregularities, you will often receive a mandatory request for rectification: an official report will not be drawn up provided you sort out all the violations. Rectification will often be retroactive.

Right of discretion

If a police officer discovers a violation, he or she is obliged to report it. This is not the case for a social inspector, who has the ‘right of discretion’. It is up to the inspector whether to give a warning, require rectification or draw up an official report.

Penalties

An official report is drawn up for serious violations of employment law. This will definitely be done for any undeclared work or the employment of workers without a valid residence permit. Administrative and criminal penalties may follow.

The official report: special evidential value

An official report made by a social inspector has ‘special evidential value’. This means that the inspector’s findings meet the standard of evidence. The burden of proof always lies with the offender. This special evidential value only applies to the inspector’s ‘sensory observations’, and not to subjective findings or suspicions. The official report must also be drawn up in accordance with the standards and within 14 days of the findings. Failing this, it loses its special evidential value.

An overview of penalties according to the violation level is given below:

In certain cases, the amount of the fine is multiplied by the number of employees, prospective employees, trainees, self-employed workers or self-employed trainees to whom the violation relates.

Example: as an employer you fail to prepare individual accounts for ten employees; you are liable to pay the amount of the fine times 10.

However, the multiplied fine may not exceed 100 times the maximum amount of the fine.

Who is penalised?

An administrative fine is usually imposed on the offender, which in practice usually means the employer. In certain cases, an administrative fine may also be imposed on persons other than the employer. For example, on employees who refuse to cooperate with an interview or others present at the workplace.

Criminal fines and prison sentences are imposed on the person who committed the violation: the employer, an appointed employee or an agent. However, the employer always has civil liability for the payment of the fines.

Social inspections: five tips for the interview

Sometimes you will be sent a letter in advance, but it’s equally possible that the social inspection may show up unannounced at the door of your business. During such an inspection, the business manager and employees can expect to be interviewed. Use these five tips to keep a cool head.

If you are inspected by the Employment Law Supervision Service, the visit will start with certain documents being checked:

• all employment contracts,
• your employment regulations,
• work schedules,
• payslips,
• the individual annual statement for each employee.

The inspectors can also request work permits and cards, as well as proof of work accident insurance, invoices relating to benefits in kind (e.g. telecom operator, car dealer) and so on.

Read more about their powers in this blog.

They will then ask you and your employees a number of questions. This may seem stressful to you, but if you keep these five tips in mind it is sure to go well:

 Tip 1: cooperate constructively

You cannot refuse an interview: if you do, you risk being penalised. So take a constructive approach and encourage your employees to do the same even if things are very busy. The inspector can interview the employees present individually or collectively. As an employer you may not demand to be present, although it is sometimes permitted.

Tip 2: use your right to remain silent

Cooperating does not mean that you are obliged to answer every question. The inspector must point out that you have the right to remain silent at the start of every interview. Stating that you need to look up or check certain matters, for example with your social secretariat, is therefore not a problem. And if your employees are in any doubt, they can always pass the matter on to you or to HR. In addition, it is inadvisable to start blaming yourself.

Tip 3: let sleeping dogs lie

Answer the inspector’s questions briefly and stick to the point. In other words, definitely do not digress into matters that strictly speaking you haven’t been asked about. Remember that the social inspector has the right to pass on any information obtained to other inspectorates.

Tip 4: consult your lawyer

In the case of serious violations for which you may face a penalty of the highest level (e.g. violations relating to the Dimona declaration), you are entitled to consult a lawyer beforehand. During the interview itself, your lawyer may assist you but not represent you. You will therefore need to be present and if necessary answer questions. In any case, it is advisable to contact your lawyer or advisor whenever there is a social inspection.

Want to know more about the different penalties a social inspector can impose? Read more about it in this blog

Tip 5: request the official report

If you have been questioned by the inspector, you will be given the opportunity to read the official report afterwards, and to add or change things where applicable. You are also entitled to a copy of the report, so be sure to request it.

Finally: pass on these five tips to your staff as well. This is because even when you are not on the premises, the social inspectorate is able to carry out an inspection and ask questions. Make sure you also show your employees the location of the documents that are usually requested by the inspectorate (see the list above), so that they can quickly provide them to the inspector.