What’s new?

The regime before

1 January 2014 Major changes
in Belgian
New notice periods for all
Transition rules
What else is changing?
Unresolved issues
What is the financial effect
of the reform?
dismissal rules

What’s new?
Following a Constitutional Court decision in 2011, the Belgian legislator had until
8 July 2013 to end the difference between the way it treats blue- and white-collar
workers on two accounts:
• the notice period in case of termination; and

• the absence of a guaranteed salary for the blue-collar worker’s first day of sick leave
(the so-called waiting day).

The court found the relevant legal provisions discriminatory (so non-constitutional)
but decided to keep them until 8 July 2013, to give the legislator time to harmonise
its treatment of the two kinds of workers.
Employer and trade union representatives negotiated a solution in July, which the
government then turned into a draft law. The law was voted on in late 2013 by parliament,
and it came into force on 1 January 2014. The Employment Contracts Act of 3 July 1978 (ECA)
has been amended accordingly. It introduces a new way to calculate the notice period for all
workers. As expected, blue-collar workers will see their notice period (or termination
indemnity paid in lieu) increase, and white-collar workers will see theirs decrease.
These new rules supersede the change in law brought about by the law of 12 April 2011,
which came into force in 2012 and affected employment contracts that started on or after
1 January 2012.

The regime before 1 January 2014

For contracts that existed before 1 January 2012:
• the minimum statutory notice for blue-collar workers on termination by the employer
was 28 or 56 days, depending on the length of service – less than 20 years or 20 or more.
Many industries increased the minimum through sector-level collective bargaining
agreements (CBAs); and

• the minimum statutory notice for white-collar workers was three months for each
(started) period of five years’ service. Employees whose annual gross salary was more
Satya Staes Polet than €32,254 were entitled to longer notice periods – often calculated according to the
Principal Associate
T +32 2 504 7594 ‘Claeys formula’.
E satya.staespolet@freshfields.com
For new contracts that started on or after 1 January 2012:
Jean-François Gerard
Head of Practice Development • minimum statutory notice of between 28 and 129 days for blue-collar workers, depending
T +32 2 504 7697
E jean-francois.gerard@freshfields.com on length of service and without prejudice of specific sector-level provisions;

Freshfields Bruckhaus Deringer llp 1

 • for white-collar workers who used to earn less than €32,254 gross a year, three months
for each (started) period of five years’ service; and

• roughly 30 days’ notice for each year of service for employees who used to earn more
than €32,254, with a minimum of three months.

As of 1 January 2014, New notice periods for all

a single regime replaces As of 1 January 2014, a single regime replaces all the previous ones. There will no longer
all the previous ones. be a difference between blue-collar and white-collar workers.
There will no longer For dismissal and resignation, the new notice periods now depend solely on length of service.
be a difference between Salary levels and the employee’s position no longer affect the termination package for
white-collar workers.
blue-collar and white-
Notices are now expressed in weeks, not months or days, and the notice periods will be
collar workers.
calculated as follows:

Service period from 1 January 2014 Notice (Employer) Notice (Employee)

0 – < 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 – < 9 years 27 weeks 13 weeks
9 – < 10 years 30 weeks 13 weeks
10 – < 11 years 33 weeks 13 weeks
11 – < 12 years 36 weeks 13 weeks
12 – < 13 years 39 weeks 13 weeks
13 – < 14 years 42 weeks 13 weeks
14 – < 15 years 45 weeks 13 weeks
15 – < 16 years 48 weeks 13 weeks
16 – < 17 years 51 weeks 13 weeks
17 – < 18 years 54 weeks 13 weeks
18 – < 19 years 57 weeks 13 weeks
19 – < 20 years 60 weeks 13 weeks
20 – < 21 years 62 weeks 13 weeks
21 – < 22 years 63 weeks 13 weeks
After 21 years’ service, the notice period increases by one additional week for each year
of service.
The employer can still choose between a termination with notice to be worked or an
immediate termination with payment in lieu of notice. The payment in lieu of notice
is still based on the annual gross salary and benefits, as under the old rules.

2 Major changes in Belgian dismissal rules, March 2014

Transition rules apply Transition rules
to employees hired Transition rules apply to employees hired before 1 January 2014, but dismissed after
before 1 January 2014, this date.

but dismissed after Phase 1

this date. The old rules in place on 31 December 2013 apply to service years accrued before 2014.
There is one exception: white-collar workers who earn more than €32,254 (annual gross)
will be entitled to one month for each year of service accrued before 1 January 2014,
with a minimum of three months. The so-called Claeys formula is no longer relevant
and cannot be called on in negotiation by employees.

Phase 2
The new regime applies to service years accrued from 1 January 2014.
The total notice period is made up of the notice periods accrued under phases 1 and 2.
The same rule applies to blue-collar workers. But because this would lead to continued
discrimination for blue-collar workers under current employment contracts, they will be
entitled to an additional dismissal indemnity paid by the state. This indemnity is equal to
the difference between the notice or payment in lieu calculated on the basis of the transition
rules and the notice or payment in lieu that would apply if the new rules applied to their
whole service. Blue-collar workers who are not entitled to this dismissal indemnity will
still be entitled to a so-called dismissal allowance. Other rules apply in specific sectors.

Here are two examples

A white-collar worker hired on 1 January 2000 and terminated on 1 January 2015 and who
earns more than €32,254 gross a year will be entitled to 13 months’ notice for the period
between 1 January 2000 and 31 December 2013, plus eight weeks for 2014.
A blue-collar worker in the food industry hired on 1 January 2000 and terminated on
1 January 2015 will be entitled to 147 days’ notice for the period between 1 January 2000
and 31 December 2013, plus eight weeks for 2014. The blue-collar worker will also be entitled
to the dismissal indemnity paid by the state.

Notice periods notified What else is changing?

as of 1 January 2014
Start date of the notice period
start on the Monday Notice periods notified as of 1 January 2014 start on the Monday that follows the notification
that follows the date, and no longer on the first day of the month after the notification date. Dismissals by
notification date and registered mail take effect on the third day after they are sent. So to start on the next Monday,
notices must be sent on the Wednesday at the latest.
no longer on the first
day of the month after Trial period
the notification date. The trial period no longer exists. It used to allow for shorter notice periods during the first
few months of the employment relationship. So, it did not make sense to keep these now
that notice periods are a lot shorter. Trial periods in contracts signed before 2014 will stay
in place until their agreed term.
Where the end of the trial period was the trigger for specific entitlements or obligations
(eg non-compete clause, schooling clause), the reference to the former trial period is
replaced by ‘the first six months of the employment relationship’.
In student contracts and in interim and temporary employment contracts, the first three
days of effective employment remain a trial period. During this period both parties may
end the contract without notice or payment in lieu.

Freshfields Bruckhaus Deringer LLP 3

 Motivation of the dismissal and unfair dismissal
Until now, an employer wasn’t obliged to justify dismissing an employee. However,
a (sometimes formal) justification was needed in circumstances such as dismissals
for gross misconduct or dismissals of protected employees. Blue-collar workers enjoyed
a specific protection – ie they could claim that their dismissal was not based on their
performance or attitude, or on economic reasons and, if the employer could not prove
otherwise, they were entitled to an extra six months’ indemnity.
Under the national CBA no. 109, which the National Works Council entered into on
12 February 2014, dismissals notified from 1 April 2014 will have to be justified if requested
by the dismissed employee. And from the same date, the specific protection for blue-collar
workers under the unfair dismissal rules will no longer exist, except for certain categories
of blue-collar employees.
The dismissed employee may ask the employer to give the reasons for the dismissal by
registered mail within two months after the effective end of the contract. The employer
must respond by registered mail within two months from this request. The employer’s
response must give concrete reasons for the dismissal.
Employers may, of course, give the reasons for the dismissal when the dismissal is notified.
In this case, and if it gives concrete reasons for the dismissal, the employer does not have
to respond to a later formal employee request.
An employer that does not respond to the employee’s request (and has not given the reasons
for the dismissal) is subject to a fine of two weeks of the employee’s salary and benefits.
If the dismissal is clearly unreasonable, the employer may be ordered to pay an indemnity
equal to at least three and at most 17 weeks’ salary and benefits. The employee may claim
additional damages under civil law.
A dismissal is considered clearly unreasonable if the employee is under an open-ended
Dismissals notified contract, the reasons for the dismissal are unrelated to the employee’s attitude or
from 1 April 2014 performance or to the operational requirements of the business and if it would not have
will have to be been decided by a normal and reasonable employer.
justified if In a dispute, the burden of proof will be divided as follows:
requested by the • if the employer has given the reasons for the dismissal in line with statutory provisions,
dismissed employee. each party must provide the relevant supporting evidence of the alleged facts;

• if the employer has not given the alleged reasons for the dismissal, it must provide
supporting evidence that the dismissal was not clearly unreasonable; and

• the employee who has not asked for the reasons for the dismissal must provide
supporting evidence that the dismissal was clearly unreasonable if (s)he wants
to claim any indemnification.

The CBA does not apply to dismissals during the first six months of service, interim
contracts, student contracts, dismissals with a view to access the early retirement regime,
dismissals with a view to retirement, dismissals within the framework of restructurings,
dismissals subject to a statutory procedure and dismissals for gross misconduct.
Belgium remained one of the few European countries where dismissals did not have
to be justified. But with these new rules, Belgium has ended this situation.
While the new dismissal rules should put an end to the discussions around the length
of notice or the amount of payment in lieu, the newly introduced obligation of justification
will, conversely, trigger new forms of discussions before court. It is expected that parties
will try to avoid such discussions by settling on the justification for the dismissal,
in exchange for an additional indemnity.

4 Major changes in Belgian dismissal rules, March 2014

Outplacement
Under the old rules, outplacement only had to be offered to employees who were dismissed
after they reached the age of 45.
Under the new regime, dismissed employees will be entitled to outplacement as soon as they
are entitled to 30 weeks’ notice, regardless of their age and provided that they are not
dismissed for gross misconduct or within the framework of a restructuring. The old regime
will apply to employees aged 45 years or more who are not entitled to 30 weeks’ notice.
When the employee is dismissed with a notice to be worked, the outplacement service has
to amount to 60 hours. It is mainly used during the hours of paid leave to which the
employee is entitled to search for a new job.
When the employee is dismissed and paid in lieu of notice, the outplacement must have
a value of one-twelfth of the annual salary earned during the preceding civil year, with,
however, a minimum of €1,800 and a maximum of €5,500. If the employee accepts the
outplacement, four weeks’ pay will be deducted from the payment in lieu; if the employee
refuses, the four weeks’ pay will not be deducted. From 1 January 2016, the four weeks’ pay
will be deducted even if the employee refuses.
By 1 January 2019, sectors should implement rules providing that two-thirds of the notice
or payment in lieu (with a minimum of 26 weeks) will be worked or paid, while one-third
will be paid out through redeployment measures.

Collective dismissals and social plans

The old rules still apply to collective dismissals when the employees are dismissed within
a collective dismissal that was decided and notified before 31 December 2013 and they
fall within the scope of a social plan that was filed with the Ministry of Labour on
31 December 2013, at the latest.

Top managers in listed companies

Executive directors, members of the executive committee and managing directors of listed
companies must comply with specific requirements set out by the 2009 Governance Code
and confirmed by law on 6 April 2010.
In summary, conventional severance indemnity is capped at 12 months. It can go up to
18 months if advised by the remuneration committee and above 18 with a vote from the
general meeting. These requirements are unaffected by the new dismissal rules. According
to the draft new Belgian Banking law, which is under discussion in parliament, similar
rules should also apply to financial institutions in the short term.

Waiting day
From 1 January 2014, blue-collar workers will receive their guaranteed salary from the first
day of sick leave.

Unresolved issues
We are far from full harmony between blue- and white-collar workers’ statuses. So for now
differences will remain, and these could lead to other decisions from the Constitutional
Court and more changes.

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 What is the financial effect of the reform?
The exact financial effect of the changes will vary from one industry to another, but it looks
clear that blue- collar-heavy industries will see a net increase in termination costs.
Employers who have mostly white-collar workers might think they are safe. But the changes
we have looked at in this briefing are not the only ones. Under a royal decree that came into
force on 1 October 2013, several indemnities paid at the end of the employment relationship
and that used to be exempt from social security contributions – indemnities of clientele and
indemnities paid on the basis of non-compete covenants, among other things – entered into
after the end of the employment contract are now subject to those contributions.

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