News and Updates

The View from Europe - Belgian Rules on Termination of Employment

Brecht Cops, Partner of Younity Avocats, a law firm in Belgium specialising in legal services in the field of human resources and statutory and occupational pensions, provides a useful summary of the Belgian rules on termination of employment below.

Under Belgian law, termination rights of blue collar employees are substantially less favorable compared to white collar employees. In 2011, the Constitutional Court ruled that such difference in treatment (based on the criterion of manual/intellectual labour) was unconstitutional. The Constitutional Court ordered the Belgian government to abolish this unequal treatment by 8 July 2013. A few days before the deadline, the social partners agreed on a compromise proposal drawn up by the Belgian Minister of Work. The compromise proposal has recently been incorporated into a new law, which was published in the Belgian State Gazette on 31 December 2013.

Situation up to 31 December 2013

Notice periods to be observed by an employer when terminating a blue collar employee are substantially less favorable compared to the notice periods to be observed when a white collar employee having similar seniority is terminated.

By example, a blue collar employee having 20 years of service or more, is entitled to a statutory notice period of 112 days (higher notice periods being applied in many professional industries though). A white collar employee having identical seniority and with an annual remuneration up to 32,254 EUR gross, is entitled to a statutory notice period of 15 months (3 months per period of 5 years of service commenced).

For white collar employees earning an annual remuneration of at least EUR 32,254 gross, notice periods were commonly determined on the basis of the so-called Claeys formula i.e. a statistical formula derived from case law, taking into account the employee’s salary, seniority and age. In many cases the Claeys formula resulted in higher notice periods than statutory notice.

The relevancy of the Claeys formula has been strongly reduced though, since for employees belonging to the latter category of employees (i.e. > EUR 32,254 gross), notice periods are limited to 30 days per commenced year of service (with a minimum of 3 months) for those employees starting employment as of 1 January 2012.

Situation as from 1 January 2014     

As from 1 January 2014, identical notice periods are being applied to both blue and white collar employees entering into employment with a new employer on or after 1 January 2014. 

The new notice periods are included in the table below.

Deviating rules apply to certain industries (e.g. construction industry).

Transitional measures

For employees in service of their employer prior to 1 January 2014, and still in service on or after 1 January 2014, a transitional measure has been adopted providing that notice is calculated on the basis of two components:

  • Seniority acquired after 1 January 2014:

Notice is computed in accordance with the attached table. 

  • Seniority acquired prior to 1 January 2014:

Notice is computed taking into consideration the following principles:   

  • For blue-collar employees, notice periods are determined in accordance with the legal, regulatory or conventional rules applicable on 31 December 2013 i.e. either the statutory notice periods or deviating notice periods determined at industry or company level;
  • For white-collar employees earning an annual remuneration inferior to EUR 32,254 on 31 December 31 2013, the notice period will be 3 months per period of five years of seniority commenced;
  • For white-collar employees earning an annual remuneration exceeding EUR 32,254 on 31 December 2013, the notice period amounts to one month per year of service commenced (with a minimum of 3 months).

To determine aggregate notice to be observed by the employer, the above two components should be added up.

In case notice is given by the employee, the same rule applies (i.e. adding up two notice periods). However, the notice to be observed by the employee is capped at 13 weeks (exception is made for certain white collar employees having acquired high seniority prior to 1 January 2014, in which case a notice of 4, 5 or even 6 months may have to be observed).   

On the basis of the above principles, the unequal treatment between blue collar and white collar employees would clearly subsist, in particular in relation to termination rights linked to seniority acquired up to 1 January 2014. To abolish such discrimination, a compensatory indemnity will be paid to blue collar workers by the Belgian Employment Office. Such compensatory indemnity shall amount to the balance of the amounts actually perceived by the blue collar employee being dismissed, and the blue collar employee’s rights calculated as if he would have acquired his full seniority under the new rules applicable as from 1 January 2014. However, not all blue collar employees will immediately receive the compensatory indemnity. A gradual implementation has been provided for, depending on the blue collar employee’s seniority.  

What else to remember?

 

  • Notice periods will be effective the Monday of the week following the week during which the notice is served (for white collar employees this used to be the first day of the following month);
  • The trial period is abolished under Belgian employment law except in particular cases e.g. student labour ;
  • Outplacement rights are extended to any employee being entitled to a notice/indemnity of 30 weeks (instead of only the elder employees aged 45 or more);  
  • The “carenz day” i.e. the first day of unpaid sick leave for blue collar employees, is abolished;
  • Reasons for termination will have to be  motivated (such right/obligation currently not being provided for under Belgian law);
  • Other differences between blue collar status and white collar status are under review.

 

 

Seniority

Notice to be observed by employer

Notice to be observed by employee

3 months

2 weeks

1 week

3 - 6 months

4 weeks

2 weeks

6 - 9 months

6 weeks

3 weeks

9 - 12 months

7 weeks

3 weeks

12 - 15 months

8 weeks

4 weeks

15 - 18 months

9 weeks

4 weeks

18 - 21 months

10 weeks

5 weeks

21 - 24 months

11 weeks

5 weeks

2 - 3 years

12 weeks

6 weeks

3 - 4 years

13 weeks

6 weeks

4 - 5 years

15 weeks

7 weeks

5 - 6 years

18 weeks

9 weeks

6 - 7 years

21 weeks

10 weeks

7 - 8 years

24 weeks

12 weeks

8 - 20 years

 3 weeks  added per commenced year of service

13 weeks

20 - 21 years

2 weeks added per commenced year of service

13 weeks

21 years and above

1 week added per commenced year of service

13 weeks

 

For further information on any of the details within this article or assistance with Belgian law matters, please contact Brecht Cops, Partner, Younity Avocats on +32 2 880 77 90 or by email at brecht.cops@younity.be.

Brecht Cops

Partner

T +32 2 880 77 90

F +32 2 880 77 81

brecht.cops@younity.be

 

Vorstlaan 36 – 1170 Brussels

www.younity.be

 

+44 (0)20 7925 8080 info@spencer-wyatt.com