New notice periods as of 1 January 2014
As of 1 January 2014 the notice periods for both blue and white collar workers (for the employer) will be determined as follows:
For ongoing employment agreements, the current notice periods as built-up with the present employer will be fixed on 31 December 2013. As of 1 January 2014, additional notice is acquired in accordance with the new rules.
In order to allow blue collar workers to catch-up, the notice terms during a transitional period should reach at least the following minima:
Sectoral deviations will be allowed upon the condition that the minimal notice period of 6 months is guaranteed, but 1/3rd of the notice period must serve to maximize the chances of re-employment of the dismissed employee.
As of 7 years’ seniority, outplacement will become obligatory taking into account that the cost equal to 4 weeks can be reduced from the notice period as long as at least 6 months of notice period remains guaranteed.
Beside the amendments already announced regarding the notice period, also a number of other measures have been adopted, taking effect on 1 January 2014:
Abolition of “Carenz day”
The “carenz day” or waiting day (the unrefunded first day of sick leave), together with the discrimination regarding the regulations on the notice period were the immediate cause for the judgment by the Constitutional court of 7 July 2012.
Abolition of probation period
Only in a very limited number of cases probation would be limited to 3 working days, e.g. student work and temporary agency work. A provision in the employment contract will no longer be required.
Notice period starting on Monday
Where previously there was a difference in the moment the notice period takes off (for white collars workers on the first day of the month following the notification), the notification period will now start on the next Monday following the notification.
Notion “seniority” (including period performed as temporary agency worker)
Seniority is understood to be the period during which the worker uninterruptedly remains in service of the same undertaking. Also the employment in the capacity of temporary agency worker must under certain conditions be taken into account, i.e. to the extent that there was no interruption of more than 7 days, the job duties are identical and for a maximum of 1 year.
Maximum notice period
The notice periods are not absolute maximum terms, only these should not be deviated from on sector level (joint committee or subcommittee). The employer and employee would still be able to deviate from this rule on individual level, as well as via a CBA on company level.
As a reminder, it was decided that in case of notice by the employer, the notice period will evolve progressively: first three-monthly during the first two years of seniority and subsequently annually. From the fifth till the nineteenth year, seniority is built up with three weeks per year. In the 20th year, the notice period is increased by two weeks, and from the 21st year with one week per year of seniority started.
In case of notice by the employee, the notice period is determined at 1 week for each three months period of seniority, etc. to a maximum of 13 weeks in case of 8 years or more of seniority.
Currently a number of propositions are on the table in respect of special circumstances, such as dismissal when reaching the statutory retirement age or in case of illness.
Fixed-duration contract of employment
In respect of fixed-duration contracts of employment the new act holds specific provisions, in particular regarding the possibility of notice during the first half of the agreed duration of the employment contract. In case of consecutive employment contracts, this can only be done during the first contract that the parties have concluded.
The notice period to be respected in case of notice by the employer or the employee in respect of an employment contract concluded prior to 1 January 2014 is determined by adding up the below two notice periods:
- The notice period applying according to an uninterrupted seniority on 31 December 2013 and determined on the basis of the then existing legal, regulatory and conventional rules;
- The notice period applying according to the uninterrupted seniority as from 1 January 2014 and determined on the basis of legal, regulatory rules applicable on the moment of notification.
The government provides for a compensatory arrangement and indemnity for employees who prior to 1 January 2014 qualified as a blue collar worker, in order to offer them, under certain circumstances, an equal protection against dismissal as is the case for employees who built up an equal seniority for the whole period of employment with the same employer in the new system.
Employees that do not meet these conditions will be benefitting from a severance payment at charge of the National Employment Office (NEO).
However, employees of certain industries, such as the wood, textile and diamond industry, will, in respect of dismissal notified between 1 January 2014 and 31 December 2017, be able to benefit from a transitional arrangement to evolve gradually towards the new notice periods.
For mobile and temporary construction sites even an unlimited exception to the application of the new dismissal regulations applies.
Abolition arbitrary dismissal and motivation of the dismissal
The law provides that the current provision on unfair dismissal and the motivation of a blue collar worker’s dismissal will be abolished. The social partners should conclude a Collective Bargaining Agreement within the National Labour Council containing one single rule that will be applicable to all employees. To this day, no agreement has been reached and hence the current provision remains in force.
Deferred social liability
For employees that have built up a seniority of more than 5 years in the unified statute as from 1 January 2014, employers will be obliged to build a deferred social liability fund. Employers will have to build a reserve, which will be deductible from the taxable base. In practice this will only be feasible from 2019 due to the requirement of a minimum seniority of 5 years in the unified statute, i.e. from 1 January 2014.
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