New statute of limitations rules criminal law: what are the implications for employers?

The Criminal Procedure Act I, published in the Belgian State Journal on 18 April 2024 and entered into force on 28 April 2024, thoroughly reformed the existing system of statutes of limitations for crimes.

The amended criminal statutes of limitations not only affect the actual prosecution of (social law) crimes but also ensure that employees now have more time to bring certain claims against their (former) employer. Taking this into account, an employer would be well advised to keep certain documents relating to employees for a longer time, thus forcing an adjustment of the retention policy.

New longer criminal statutes of limitations

The Criminal Procedure Law I Act fundamentally changed the criminal statutes of limitations. The most important change is the introduction of longer statutes of limitations. On the other hand, it is no longer possible to interrupt the statute of limitations (where an act of interruption triggered a new statute of limitations) and the grounds for suspension were curtailed. Another important change concerns the end-point of the statute of limitations. Henceforth, the statute of limitations ceases to run from the day on which the case is brought before the judgment court (e.g., the correctional court).

For example, the statute of limitations for a malpractice – these include among other infringements under the Social Penal Code punishable by a Level 2, 3 or 4 sanction – has been doubled: from five years to ten years. So today, the labour auditor has ten years to prosecute.

Impact on the civil claim that an employee can bring against a (former) employer

The new criminal statutes of limitations also have an impact on the time that an employee has in which to bring certain claims against the (former) employer.

An employee faced with a contractual malpractice that also constitutes a criminal offence (e.g., failure to pay wages) can also base the civil claim against the employer on the existence of a crime. Here, the civil claim can never be time-barred before the criminal claim.

As mentioned above, the violations of the Social Penal Code punishable by sanction level 2, 3 or 4 are qualified as malpractices. Thus, taking into account the new time limits, they are only time-barred after ten years. In concrete terms, this means that an employee now has ten years (instead of five) to bring a civil claim based on an infringement under the Social Penal Code.

In practice, this will mainly come into play for claims for back pay. Nothing will change for claims for payment of (additional) severance pay, as the payment of severance pay is not criminally sanctioned.

Impact on retention policies within companies

This modification also affects retention policies within companies.

According to the European General Data Protection Regulation, an employer may not retain its employees’ personal data longer than necessary for the purposes of processing. Therefore, an employer must draft a detailed list of the various processing activities within the company, specifying the retention periods and the reasons for these periods. We call this the retention policy within the company.

When determining specific retention periods, consideration is usually given to (i) the minimum or maximum retention period required by law, if any, (ii) civil and criminal statutes of limitations, and (iii) practical feasibility.

Typically, data and documents relating to employees are retained for the duration of employment and for a period of five years after the end of the employment contract. This retention period is justified by the civil and criminal statutes of limitations for claims that may be brought in the context of an employment relationship.

With the extension of the criminal statutes of limitations, an employer today must take into account that he/she can be prosecuted up to ten years later and that an employee has ten years in which to bring a civil claim based on a crime.

Taking this into account, it is appropriate to extend the retention period to ten years. The extended retention policy will also affect the entry of retention periods in the record of processing activities and in the employee privacy notice.

Key message

The new (longer) criminal statutes of limitations mean that employees have more time in which they may bring certain claims against their employer. It is advisable to adapt the retention policy within your company accordingly. Our data protection team can always assist you in determining concrete retention periods for all data and documents processed within your company.