Every employer has the obligation to set up an internal service for prevention and protection at work (ISPP), which must include at least one health and safety advisor. In companies with fewer than 20 employees, the employer him- or herself can exercise this function. The task of the internal health and safety advisor primarily consists in advising and assisting the employer when implementing preventive measures related to the well-being of employees. The advisor also acts as point of contact with the external service for prevention and protection at work (ESPP).
The act of 20 December 2002 protects health and safety advisors against dismissal and discharge, so that they can independently exercise their function. An employer can therefore only dismiss health and safety advisors or discharge them from their function:
- For reasons not related to their independence or for reasons that prove that they are not fit for the job; and,
- By complying with a preliminary procedure. In a nutshell, before dismissing or discharging a health and safety advisor, the employer must:
- communicate to the concerned health and safety advisor, by registered mail, the reasons for which the contract is to be ended and proof of these reasons;
- and seek simultaneously, by registered mail, the consent of the health and safety committee(s) (HSC) (in its absence, the consent of the trade union delegation, or in its absence, the consent of the employees).
The employer who does not comply with the above-mentioned procedure, or who invokes reasons that are not legally accepted, must pay a protection indemnity equal to 2 or 3 years remuneration depending on whether the health and safety advisor counted less or more than 15 years of seniority in his or her function as health and safety advisor.
The procedure does not apply in certain cases, notably in case of dismissal for a serious cause. Thecourt can however, reject the serious cause. In that case, the employee is not automatically entitled to the protection indemnity, but only if the reasons for dismissal are related to the independence of the health and safety advisor or if the employer cannot prove the reasons related to the advisor’s incompetence.
If the health and safety advisor exercises, in addition to that function, another function for the employer (which is often the case for small businesses), the indemnity will be proportionally reduced to the time during which the function as health and safety advisor was exercised. However, the challenge will be to determine and prove this proportion.
To dismiss or discharge a health and safety advisor without complying with the legal provisions can thus be very expensive. Nevertheless, we notice that a lot of employers ignore the existence and the stakes of this protection.
To do
In order to avoid or reduce the expensive protection indemnity, we recommend following some best practices.
- Think twice if you consider dismissing a health and safety advisor for a serious cause.
- Follow the preliminary procedure for the dismissal or discharge very carefully andkeep copies of documents proving that you have properly followed the procedure (registered letters, minutes of the HSC or the trade union delegation).
- The law does not make any distinction between the health and safety advisor and anyreplacement/assistant. Therefore, you should also be careful even if it does not concern your "main" health and safety advisor.
- The organigram of your company should clearly indicate the health and safety advisor(s) and, if necessary, their other functions. The work rules must also enumerate the health and safety advisors.
- If your health and safety advisor also exercises another function, make sure to distinguish the function as health and safety advisor from the other function(s). In this case, it can be useful to formalize the distribution of tasks by means of certain documents:
- (Annex to) the employment contract. You can provide for a clause in the employment contract stating the percentage of occupation as health and safety advisor. If the health and safety advisor is already in service, you can sign an annex.
- Ensure the proper drafting of certain documents such as the minutes of the meeting of the HSC or the trade union delegation concerning the appointment of the health and safety advisor or even the annual report of the ISPP.
- Description/name of the functions. The different functions of the health and safety advisor must be named, described and distinguished in a clear manner. Avoid terms which are too vague (e.g.: "compliance") or which could lead to believe that all the tasks of the employee actually concern prevention, safety, hygiene, and so on (e.g.: "QHSE Manager"). Keep the legal notion of "health and safety advisor" for things which concern this particular mandate and pick another name for the remaining tasks.
- In case of a modification (e.g.: decrease in occupational time as health and safety advisor), make sure to actualize all documents.
