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  • Writer's pictureKris Somers

Can a director be an employee?

"Yes and no" is a close second to "it depends" on many a lawyer's list of favourite replies to legal questions. And sometimes, "yes and no" is indeed the only correct answer. For instance when the question (under Belgian law) is whether you can have an employment agreement with the company for which you act as a director.

On the one hand, the Belgian Company Code clearly states in relevant part that "directors, acting in their capacity as director of a company, cannot be bound by an employment agreement with that company."

This means that if you are a director of a Belgian company, you can only exercise that mandate as a self-employed person, not as an employee of the company.

On the other hand, the Code does not prohibit you from being engaged as an employee by the company in relation to tasks and assignments that are unrelated to your mandate as a director.

Thus, representing the company as a director vis-à-vis third parties (a task inherent to the functioning of a director) presupposes a self-employed status, whereas it can be argued that many items of day to day internal and operational management can be the subject of tasks performed in the context of an employment agreement.

It is important that the by-laws of the company are clear on which competences a director exercises as a director and whether the director is remunerated (as a self-employed person) for those tasks or not.

It is equally important to ensure that the tasks that a director performs as an employee are clearly distinguished from the directorship and are performed suject to actual control by the employer, i.e. as part of a genuine employer-employee relationship. If not, the director (and the company) risk requalification pursuant to social security laws.

The above holds true for all directors and board members of Belgian limited liability companies (whether they be "NV", BV" or "CV").

Do you want to sleep easy at night, not worrying about your social or legal status as a director? Then be sure to get expert legal advice from your lawyer. Even if the correct answer may imply "yes and no" at the same time.

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