Paying the bill for your contractor's mistakes: Flemish government sharpens chain liability for illegal employment


Companies working with (sub)contractors are (hopefully) already aware that, in some situations, the legislator provides for so-called chain liability, whereby the principal can also be held liable for his contractor's shortcomings. Think of the joint and several liability for salary arrears owed to the contractor's employees, whereby specific rules apply to the construction sector.


Flanders also provides for chain liability if the contractor employs workers without the necessary residence permits. Following some scandals that have appeared in the press over the past year, the Flemish regulator has decided to turn up the heat.


A draft Flemish decree on chain liability aims to end illegal employment of foreign workers and abusive constructions in Flanders. Indeed, the regulations currently state that chain liability does not apply if the principal has his contractor declare in writing that the latter does not or will not employ any non-EU citizens residing illegally - a clause that can regularly be found in service agreements. In this way, the principal or main contractor often escapes all responsibility. The Flemish regulator now wants to clamp down on this.

The draft decree obliges companies to perform a "minimum due diligence test" when they cooperate with a (sub)contractor, in order to prevent the evasion of responsibilities. This minimum due diligence obligation will require principals and (main) contractors to request certain data from direct (sub)contractors to substantiate that the latter comply with legal requirements. If the requested data would reveal illegal employment, or if insufficient data is presented, the principal or (main) contractor will be obliged to hold the (sub)contractor accountable. Should the (sub)contractor subsequently fail to respond to the aforementioned request, the principal or (main) contractor is obliged to inform the Flemish Social Inspectorate.

In principle, the principal and main contractor can only be punished if they have prior knowledge of the illegal employment. This must be proven by the Flemish Social Inspectorate and, according to the draft decree, this can be done 'by all means of proof possible'.


At the end of 2022, Flemish Work Minister Jo Brouns announced his intention to implement this new decree. The draft text was approved in the relevant committee on 5 October last – we now await approval by the Flemish Parliament. The intention was for this decree to come into force by summer 2023 which, however, has not been achieved. 

As always, Reliance Littler will keep you informed!