Co-employment requires more than a close link between two entities

An employee is hired as group legal counsel on the payroll of a foreign company, under an employment contract governed by local law. The employee’s activities are almost exclusively performed in Belgium, more in particular from the Brussels’ offices of the 100% Belgian daughter company of the foreign entity. Moreover, the employee’s professional email address contains the name of the Belgian entity.

In spite of several oral and written requests, the foreign employer omits to pay the salary that has been agreed upon. Left without any revenues the employee resigns after a few months and summons his foreign employer as well as the Belgian daughter before the Brussels labour tribunal, arguing that he was in fact co-employed by both and therefore both entities could be held liable for the salary in arrears.

The labour tribunal reminded that co-employment can be accepted provided that the alleged co-employers are closely connected and that they share employer responsbilities of the employee. In the case at hand however, the court admitted that both companies were closely connected, but the employee failed to prove that the Belgian company actually provided work to him (in spite of him working from the Belgian offices and using an emailadress of the Belgian company). More importantly, the judge stated that it was not proven that the Belgian company was vested with the typical employer’s authority over the employee. The fact that both directors of the foreign entity – to whom the employee had to report – were also the directors of the Belgian daughther, did not suffice to that end.

As such this ruling is not revolutionary. It reminds us that the employer’s authority, aside from work that is performed and salary that is paid,  constitutes one of the essential elements to establish an employment contract. No proof of employer’s authority means no employment contract.