Unlawful staff provision 2026: where does payroll stop?
Last updated: August 2026
One of your team leaders sets the hours of a worker who is not on your payroll. They approve their leave days, they have a word when a job falls short, they put them on the rota like everyone else. On paper that worker belongs to a service provider. In practice, you are the one directing them.
That situation has a name in Belgian law: unlawful provision of personnel. It does not end with a warning. It ends with an open-ended employment contract between that worker and you, backdated to the first day worked, together with joint liability for everything that was not paid.
The line is not obvious. You are entitled to tell someone what to do. You are not entitled to behave as their employer. Between the two runs a line, drawn by the Act of 24 July 1987.
In short: lending staff with a transfer of employer authority is prohibited in Belgium, save for statutory exceptions. The channel you use, whether payroll, agency work or subcontracting, only protects you if you refrain from exercising employer authority day to day. Otherwise you become the worker's employer, retroactively, and you pay jointly.
What is unlawful provision of personnel?
Unlawful provision of personnel means placing workers at the disposal of a third party who exercises over them part of the authority normally reserved to the employer. FPS Employment sums it up in one sentence: lending staff with a transfer of employer authority is prohibited in Belgium, except in the cases provided for by law (FPS Employment, accessed 31 August 2026).
Three elements have to come together. An employer hires a worker. They place that worker at the disposal of a third party. That third party exercises part of the employer authority over them. As soon as those three conditions coexist outside the legal framework, the offence is established.
The title of your commercial contract protects nobody. Service provision, subcontracting, framework agreement: the name does not prevent reclassification. It is the facts that count. Inspectors look at the reality on the ground: where the orders come from, who signs off absences, who runs the appraisals.
The prohibition is not there to make business life difficult. It targets abuse by labour providers and social dumping: without it, a company could hire cheap workers while treating them as its own staff.
Where does lawful payroll stop?
Payroll stops where you begin to exercise employer authority. As long as the operator remains the legal employer, contracting, paying, filing the Dimona (immediate employment declaration), granting leave and exercising disciplinary power, the arrangement holds. As soon as those acts move to you, the channel no longer protects you, whatever your contract is called.
The distinction is more concrete than it sounds: an authorised operator does not decide who, at your premises, writes Monday morning's rota.
In practical terms, operational coordination is yours. You say what needs doing, where, by when, and to what standard. You organise site access and safety. You tell the provider what is not right.
What is not yours belongs to the worker's status: their contractual hours, their leave, their appraisal, their discipline, their pay. Touching any of those means stepping outside the framework.
The question to settle before price, then, is the legal structure. Our comparison of payroll and the temp agency and our explanation of the exact role of a payroll intermediary show who remains the legal employer in each arrangement.
What does the Act of 24 July 1987 say?
Article 31 sets out the prohibition: placing workers you have hired at the disposal of third parties who use them and exercise any part of employer authority over them, outside the rules on temporary and agency work. The same article organises its exceptions and, above all, three consequences that land together.
The commercial contract becomes void
An agreement concluded in breach of the prohibition is void from the start of performance of the work. So you cannot fall back on its liability-limitation or termination clauses: they no longer exist. The contract you negotiated line by line is worth nothing the day the offence is established.
You become the employer, retroactively
The user and the worker are deemed to be bound by an open-ended employment contract from the start of performance. Not from the finding: from the first day worked. The worker, for their part, may terminate without notice or compensation up to the originally planned end of their assignment. The exit is open for them, not for you. What binds you becomes an ordinary employment contract, with everything that sets it apart from payroll.
You pay jointly
The user and the person who provided the workers are jointly answerable for the payment of social security contributions, wages, allowances and benefits. Joint liability means the creditor chooses which of the two they claim the whole amount from. In practice they claim from whichever is solvent. If the provider has gone bankrupt in the meantime, that is you.
Which instructions may you safely give?
The law does not prohibit you from speaking to a provider's workers. It frames what you say to them. Two categories of instruction escape classification as employer authority: those concerning well-being at work obligations, and those expressly provided for in a written contract between you and the employer.
Well-being instructions are allowed without any formality. Safety rules applicable at your site, protective equipment, evacuation procedures: you may give these directly, and they do not amount to exercising employer authority.
The others require a written document. The contract between your company and the provider must state explicitly which instructions may be given. Those instructions may neither hollow out the employer's authority nor go beyond what is necessary for the proper performance of the agreed work. Finally, actual practice must match what is written: a perfect contract followed by different behaviour will not protect you.
One further formality allows no delay: you must inform your works council immediately of the existence of that written document. Failing a works council, the information goes to the committee for prevention and protection at work, or to the trade union delegation. Their representatives may ask for a copy of the relevant provisions.
Permitted instructions and indicators of employer authority
| What you may do | What tips it into employer authority |
|---|---|
| Give the safety and well-being rules in force at your site | Setting the working hours and pattern yourself |
| Specify the expected result, the deadline, the place of performance | Granting or refusing leave days |
| Give the instructions expressly listed in the written contract | Disciplining the worker or addressing their conduct |
| Tell the provider that a piece of work does not comply | Deciding on their appraisal, promotion or bonus |
| Organise site access, badges and the supply of equipment | Folding them into your internal HR processes like your own staff |
The right-hand column brings together indicators drawn from inspection practice and case law, not an exhaustive statutory list. No single indicator is enough on its own to establish the offence: it is the overall picture that counts.
When is provision of personnel allowed?
The law provides several ways through. Agency work is the first: it follows its own rules and requires an authorised agency. Then come the authorised provision under article 32, employer groupings, the employment pathways organised by the Regions and certain derogations specific to the public sector.
Article 32 and its three conditions
Article 32 opens a framed derogation subject to three cumulative conditions: only permanent workers may be lent, the operation may not constitute the employer's normal activity, and its duration must remain limited. People hired specifically to be placed at another company's disposal are therefore excluded.
The procedure adds two locks. The user company's trade union delegation must agree; failing a delegation, the agreement of the trade union organisations represented on the Joint Committee is required. Only then does the employer apply for prior authorisation from the Labour Inspectorate for the user's district.
The two cases exempt from authorisation
Two situations escape the authorisation requirement, though not every formality: cooperation between companies within the same economic entity, and the temporary performance of specialised tasks requiring particular professional skills. Both require notification to the competent official twenty-four hours in advance.
In every article 32 scenario, a written document signed by the employer, the user and the worker sets the conditions and the duration before the provision begins. And the user becomes jointly liable for wages, contributions and benefits, with an obligation to pay no less than their own workers in an equivalent role.
What do you actually risk?
The risk is twofold, civil and criminal. The first turns your commercial relationship into an employment relationship and makes you a joint debtor. The second exposes you to a fine under the Social Criminal Code: provision of personnel is among the most serious offences there, at article 177. The distinction between the two levels is worth knowing: unlawful provision itself falls under level 3, while level 4 applies where you fail to pay the worker concerned the sector's minimum wage (FPS Employment and Securex, accessed 31 August 2026).
The criminal side: the 2026 scale
The amounts have moved twice in a short space of time. The Act of 15 May 2024 doubled level 3 fines on 1 July 2024. Then the surcharge coefficient rose from 8 to 10 for offences committed from 1 February 2026. Here is what that gives today, amounts after surcharges (SIRS, the Social Information and Investigation Service, accessed 31 August 2026).
| Level | Criminal fine | Administrative fine | Imprisonment |
|---|---|---|---|
| Level 3 | €2,000 to €20,000 | €1,000 to €10,000 | none |
| Level 4 | €6,000 to €70,000 | €3,000 to €35,000 | 6 months to 3 years |
The fine is also multiplied by the number of workers concerned where the article expressly provides for it, up to a limit of one hundred times the maximum.
A floor has been added since the Act of 19 December 2025, in force since 1 February 2026: with an aggravating factor, the fine does not fall below half the maximum, meaning €35,000 criminally and €17,500 administratively for level 4 (FPS Employment for the measure, Securex for the figures, accessed 31 August 2026).
The civil side: the full calculation
The civil side often weighs more heavily, and it can be quantified. Take a worker placed at your disposal for 8 months, on gross pay of €2,800 a month.
- Gross pay over the period: €22,400
- NSSO employer contributions, at roughly 25% (indicative order of magnitude, the real rate depends on the reductions that apply): €5,600
- Amount for which you may be pursued jointly: €28,000, no automatic extra cost but what a creditor can claim from you in full if the provider does not pay
- Level 3 criminal fine, lower limit: €2,000, and that one is added in every case
- Maximum exposure: €30,000 for this one worker
Read those €28,000 carefully: it is not an invoice that automatically lands on your desk. Normally the provider has already paid that pay and those contributions. Joint liability means a creditor may claim the whole amount from you if they cannot obtain it from the provider, in the event of bankruptcy for instance. So it is a risk covering the entire sum, not an extra €28,000 you will certainly bear. The fine, by contrast, genuinely is added.
Holiday pay and the year-end bonus also have to be regularised on top. Those amounts depend on the Joint Committee, which is why they cannot be given here as a single figure, but they are owed.
Add finally the consequences of the open-ended contract that now binds you to that worker: notice period to respect, seniority to recognise, social obligations to regularise. For a single worker, over eight months. Ten minutes spent rereading a contract does not weigh much by comparison.
How do you spot the risk in your own organisation?
Certain indicators come up systematically in inspection files. They depend less on the contract than on habits on the ground: who writes the rota, who answers when the worker asks for a day off, who appears on the org chart, and who the worker reports to day to day.
Sound familiar? Then run your organisation past these five questions.
- Who sets the working hours? If it is your team leader rather than the provider, that is the first indicator.
- Who manages absences? A leave request that comes to you rather than to the legal employer is a strong signal.
- Who runs appraisals? An appraisal interview you conducted yourself cannot be walked back in front of an inspector.
- Who disciplines? Disciplinary power belongs to the employer, never to the user.
- Does the worker look like a member of your staff? Internal email address, a place on the org chart, attendance at HR meetings: these things carry weight.
If several of those answers make you uncomfortable, have your arrangement reviewed by an adviser before an inspector does it for you. The checks to run before onboarding a temporary worker follow the same logic, upstream.
How to make your arrangement watertight in 5 steps
Here is the key point: five actions are enough. Choose the right legal channel, draft the written document required by article 31, inform the social bodies, train the people who give the orders, and keep the evidence. None of these needs a significant budget. All of them need doing before the inspection, not after.
Step 1. Identify the channel you are actually using. Agency work, payroll through an authorised operator, results-based subcontracting, article 32 provision: each formula has its own conditions. If you are unsure, our comparison of agency work, freelancing and payrolling sets out the basic differences.
Step 2. Draft the article 31 written document. List explicitly the instructions you will be able to give. A generic wording such as "the user gives the necessary instructions" does not meet the condition, since the law requires the instructions to be determined expressly and in detail.
Step 3. Inform the works council. Or, failing that, the committee for prevention and protection at work or the trade union delegation. Keep a record of having done so.
Step 4. Train those who give the orders. The risk almost never arises in the legal department. It arises on the ground, with a team manager convinced they are doing the right thing by managing everyone the same way. A one-page note is often enough.
Step 5. Document and archive. The written contract, the notification to the social bodies, any authorisations, the rotas drawn up by the provider: those are your documents if the inspectorate turns up. Our overview of the mandatory social documents completes the list.
What employers should remember
- The prohibition concerns authority, not the lending of staff as such. You may work with a third party's workers; you may not exercise employer authority over them outside the statutory cases.
- Five attributes are not yours: contractual hours, leave, appraisal, discipline, pay. Operational coordination, on the other hand, is.
- The written document governs the instructions. Without a contract stating explicitly which ones, your production instructions fall outside the framework. Only well-being instructions escape that requirement.
- The civil penalty is automatic and retroactive. An open-ended contract from the first day worked, the commercial agreement void, joint liability for wages and contributions.
- The criminal bill rose in 2026. Level 3 or 4 depending on the case, surcharges at coefficient 10 since 1 February 2026, and a fine that can be multiplied by the number of workers concerned.
How Recruit helps you
Looking for flexible staff without accidentally becoming the legal employer? That is exactly what Recruit takes off your hands. With us the question is settled at source: the operator remains the legal employer, and the contract says so in black and white.
With Recruit:
- Legal employer clearly identified - We remain the employer, you keep operational coordination
- Contracts in under 60 seconds - Agency and payroll contracts generated automatically
- Dimona and social documents - Immediate employment declaration and social documents managed end to end
- Accurate payroll - Pay aligned with your Joint Committee and the legislation in force
- Personal support 24/7 - A dedicated contact who knows your file and your sector
Try Recruit or contact our HR experts for tailored advice.
Frequently asked questions
Is payroll legal in Belgium?
Yes, when it operates within the legal framework for agency work, through an authorised operator that remains the worker's legal employer. What is prohibited is lending staff with a transfer of employer authority outside the exceptions provided for by the Act of 24 July 1987. The form matters less than the reality of the authority exercised.
May I give the safety rules for my site?
Yes, with no particular formality. Complying with the well-being at work obligations applicable in your company does not amount to exercising employer authority. So you may impose the protective equipment, access procedures and evacuation rules in force at your site.
What happens if the inspectorate establishes the offence?
The inspectorate draws up a formal report. What follows depends on the public prosecutor: criminal proceedings, or transfer to the administration for an administrative fine. On the civil side, reclassification as an open-ended contract and joint liability take effect regardless of the criminal route chosen.
Is provision of personnel allowed within a group?
Cooperation between companies forming part of the same economic entity is among the cases exempt from prior authorisation, subject to notifying the competent official twenty-four hours in advance. Belonging to the same group therefore exempts you neither from the notification nor from the other conditions of article 32.
Does this prohibition cover agency workers?
No, agency work has its own legal framework, with permitted grounds for use and equal treatment rules. You do exercise part of the employer authority over an agency worker, and the law expressly organises that. The point to watch then shifts to complying with the permitted grounds and the duration.
Does a well-drafted contract protect me?
Not on its own. The law requires the actual exercise of the right to instruct to correspond entirely to the express provisions of the contract. An impeccable written document contradicted by daily practice will not prevent reclassification, since it is the facts that are examined.
The information in this article is provided for general guidance only and does not replace professional legal advice. Labour legislation changes regularly. Always consult the legislation in force or contact an HR expert for advice suited to your situation.