Belgium introduced new rules regarding dismissals of employees on January 1, 2012. The amended Act (of 12 April 2011) has fundamentally modified the Belgian dismissal rules, especially for white-collar employees whose gross annual salary is higher than €31,467 (the amount to be indexed annually), called ‘higher white-collar employees’.
In this article, we will not go into detail on the other categories of employees – i.e. blue-collar workers, nor the ‘low’ white-collar employees whose gross annual salary is below €31,467.
Belgium is one of the very last countries in Europe that makes a distinction between blue-collar and white-collar workers. This new Act is considered a first step in the harmonisation of both categories. Moreover, the Constitutional Court recently held that this distinction is discriminatory and should be completely abolished by July 8, 2013.
The new legislation will apply to employment contracts concluded as of 1 January 2012. This means that the current legislation remains in force for all employment contracts concluded before this date.
Under the (old) existing legislation the notice period applicable for ‘higher white-collar employees’ has to be agreed between the employer and employee, if there is a lack of agreement between the parties, the notice period is determined by the Courts. It will take into consideration the gross annual salary of the employee, his or her seniority, age and function. In practice, most parties use the Claeys formula to calculate the applicable notice period.
Under the new legislation, parties will no longer be able to negotiate the notice period nor will a Court be competent to determine it. The notice period will be legally determined and based exclusively on seniority. Moreover, the notice period will be expressed in terms of ‘days’ instead of ‘months’.
For example, with six years’ seniority, the notice period will be equal to 30 days per started year of seniority. As is the case with the existing legislation, the minimum notice period to be respected is the legal minimum – i.e. 3 months per started period of five years’ seniority.
The following schedule gives an overview of the new notice periods (in case of termination of the employment contract by the employer):
|
Annual Salary
|
Seniority
|
Notice
|
|
Given by Employer
|
Given by Employee
|
|
Lower White-Collar Workers
|
Under 5 years
|
3 months
|
1.5 months
|
|
up to €31,467
|
5 years to 10 years
|
6 months
|
3 months
|
|
10 years to 15 years
|
9 months
|
3 months
|
|
Over 15 years
|
3 months per commenced period
|
3 months
|
|
of 5 years' seniority
|
|
Higher White-Collar Workers
|
Under 3 years
|
91 days
|
45 days
|
|
Over €31,467
|
3 years to 4 years
|
120 days
|
45 days
|
|
4 years to 5 years
|
150 days
|
45 days
|
|
5 years to 6 years
|
182 days
|
90 days
|
|
Up to 6 years
|
30 days per commenced year of seniority
|
90 days
|
|
Up to 10 years
|
idem
|
135 days (max.)
|
As a consequence of the new legislation, the notice period of ‘higher white-collar employees’ will decrease. The new dismissal rules therefore determine the applicable notice period in an objective way. We still however have to see whether or not Labour Tribunals will be influenced by this new legislation when taking a decision over the termination of an employment contract concluded before 1 January 2012.