Chain liability for illegal employment
As a company, do you use a (sub)contractor who employs third-country nationals? Then you can be held liable if these third-country nationals are staying irregularly in Belgium. Provide a written declaration and fulfil the duty of diligence in certain cases to exclude chain liability for illegal employment.
What is chain liability?
Chain liability for illegal employment means that, as , or , you will be held liable if your employs irregularly staying .
This legislation applies to any domestic or foreign company (in)directly involved in activities carried out in the . In other words, it does not matter whether you use a Belgian or a foreign (sub)contractor; as soon as they perform activities in the Flemish Region, the legislation applies.
When are you potentially liable?
Depending on whether you have a direct or indirect relationship with your , different conditions apply for liability to be established. Note that, regardless of your role in the chain or your direct or indirect relationship with your (sub)contractor, you can in any case be held liable if the inspection services can demonstrate that you were aware in advance of the employment of third‑country nationals residing illegally.
How do you comply with the duty of diligence?
In addition to providing a written statement, you must also comply with the duty of care to avoid liability. This means that you must obtain a number of documents from your direct (sub)contractor. These documents show that your direct (sub)contractor does not employ third‑country nationals residing illegally, either as employees or as self‑employed workers. Depending on the employment situation, you will need to request different documents.
Follow these steps to do so.
- Stap 1
These regulations apply to all companies, both Belgian and foreign, directly or indirectly involved in activities carried out in the .
- Stap 2
The risk sectors are:
- The construction sector (works in real estate, supply of ready-mixed concrete);
- The cleaning sector;
- The meat sector (slaughtering, cutting, meat preparation);
- Parcel handlers commissioned by postal services.
Attention, the duty of care does not apply when:
- the work in the construction or cleaning sector amounts to less than €30,000 (excluding VAT) and is carried out by a contractor without any subcontractor; or
- the work in the construction or cleaning sector amounts to less than €5,000 (excluding VAT) and there is only one subcontractor.
- the parcel delivery company uses a vehicle subject to tachograph requirements (for the transport of parcels up to a maximum of 31.5 kg).
- Stap 3
Third-country nationals are persons who are not nationals of one of the Member States of the European Union, the European Economic Area (EEA) or Switzerland. If they perform activities in Flanders as an employee or self-employed person, it must be verified whether they are (ir)regularly staying here.
- Stap 4
These documents should show that your direct (sub)contractor does not employ irregularly staying third-country nationals as an employee or self-employed person. It concerns the following documents.
A posting from an EEA Member State or Switzerland
- The passport or travel document of the foreign worker or self-employed person;
- Residence permit for more than 3 months in the Member State where the foreign worker or self-employed person resides;
- Proof of enrolment in the Limosa database. This document is unnecessary if an exemption from the Limosa reporting duty applies;
- The A1 certificate confirming that the foreign worker or self-employed person is affiliated with the social security system in the Member State from which that person is posted. The acknowledgement of receipt of the document request is also sufficient.
A posting from outside the EEA or Switzerland where a Belgian work permit or professional card is required
- The passport or travel document of the foreign worker or self-employed person;
- Proof of valid residence in Belgium or a single permit;
- Proof of a valid Belgian Work Permit or a single permit for employees/proof of a valid professional card in the case of self-employed persons;
- Proof of enrolment in the Limosa database. This document is unnecessary if an exemption from the Limosa reporting duty applies;
In the case of Belgian employment
- The passport or travel document of the foreign worker or self-employed person;
- Proof of valid residence in Belgium or a single permit;
- Proof of a valid Belgian Work Permit or a single permit for employees/proof of a valid professional card in the case of self-employed persons;
- Proof of enrolment in the Dimona database (in case of Belgian Employment).
- Stap 5
You do not need to assess the authenticity of the documents. However, you should make an assessment of whether the documents are genuine (and not obvious forgeries) and check the validity date. Blatant forgeries or invalid documents will be considered as absent documents.
- Stap 6
Keep the documents for five years after the collaboration for inspection by the inspection services.
- Stap 7
Are certain documents missing or clearly forged or invalid? If so, contact your (sub)contractor to provide the correct documents.
No response to your inquiry from your (sub)contractor? Then report this to the Vlaamse Sociale Inspectie through the Reporting Office. Only then can you no longer be held liable.
Submit a report via the Reporting Office
To make a report through the Reporting Office, you must identify yourself so that your report is made in the name of your organisation (and not as a natural person). Data from the National Social Security Office (NSSO) are used for this purpose.
Is your company not (yet) registered with the NSSO? Then you must start by completing the registration procedure. Any company with a Belgian Crossroads Bank for Enterprise number can register with the NSSO. More information about this registration procedure can be found at the website of the NSSO (in Dutch)(opens in new window). It is currently not possible for a social service provider to file a notification on behalf of your company.
Communication materials and tools
Spread the word using the digital communication kit
Inform your business network about chain liability in the event of illegal employment and the duty of diligence via the digital communication package. This package is available in several languages and contains images and text material that you can use in your offline and online communication channels.
Download the checklist
Use the checklist to easily verify whether you comply with the duty of diligence. The checklist is available in Dutch, German, English, French, Portuguese, and Polish.