From 1 April 2014, all employees with more than six months of seniority have the right to be informed of the reason for their dismissal. If the employer fails to inform the employee of the reason for dismissal, the employee can require the employer to give an explanation. If no (timely) explanation is provided, the employer owes a lump-sum civil fine of two weeks of salary. The employee is entitled to dispute the reason for dismissal before the labour court.
Employees engaged under an open-ended employment contract may claim damages, ranging between 3 and 17 weeks of salary, in the labour court if their dismissal is ‘unjustified’. An ‘unjustified dismissal’ would be considered as a dismissal (i) for reasons unrelated to the employee’s capability or conduct, or to the operational requirements of the undertaking, and (2) which would never have been decided upon by a normal and reasonable employer. This is also called a ‘manifestly unreasonable’ dismissal.
If a party has committed a serious fault, the employment contract can be terminated for serious cause without the serving of a notice period or the payment of an indemnity. Examples of a serious fault are theft, violence, …
Some employees enjoy special protection against dismissal, meaning that they may not be dismissed on some grounds (e.g. pregnant women may not be dismissed because of their pregnancy) or cannot be dismissed unless for specific reasons provided by law (e.g. employee representatives in the Works Council and Committee for Prevention and Protection at Work (CPPW). Also, non-elected candidates may only be dismissed for serious cause with prior approval of the labour court, or for economic or technical reasons that have been recognised by the competent joint committee.
Where multiple redundancies qualify as a collective dismissal, the legislation on collective dismissals applies, and possibly the legislation regarding the closure of undertakings. There is a collective dismissal where, during a continued period of 60 days, a minimum number of employees are terminated for reasons, which do not relate to the person of the employees. This minimum number is:
There is a closure of an undertaking if:
A collective dismissal or a closure triggers the prior information and consultation obligations towards the employees (either through the Works Council or, if there is none, the Trade Union Delegation, or, failing this, the employees in person). The intention to proceed with a collective dismissal or closure must also be communicated to the competent administration (the director of the sub-regional unemployment office).
In principle, a collective dismissal gives rise to the payment of a special monthly compensation during a period of 4 months, in addition to any indemnity in lieu of notice. Only employees entitled to a notice period of less than 7 months are entitled to this compensation for collective dismissal. For the purpose of the payment of a special monthly compensation, a slightly different definition of collective dismissal has been adopted. Collective dismissal in this context means any dismissal for economic or technical reasons affecting, over an uninterrupted period of 60 days, at least 6 employees if the undertaking employs at least 20 and less than 60 employees, and 10% of the average number of employees employed during the previous calendar year if the undertaking employs at least 60 employees.
In case of a closure of an undertaking and if the conditions are met, the employees will be entitled to a closure indemnity equal to a fixed amount per year of seniority within the undertaking and per year exceeding the age of 45, with a maximum total of 7.458,36 € (figure in 2022). In the majority of cases, employers and trade union organisations establish a social plan granting additional compensation to the employees’ concerned and other measures with a view towards reducing the consequences of the collective dismissal (e.g. early retirement schemes). If the employer employs more than 20 employees, a re-employment unit (‘cellule pour l’emploi’ / ‘tewerkstellingscel’) aimed at the activation of the dismissed employees has to be installed in case of a collective dismissal (in this context, yet another definition of collective dismissal is applied). An employer employing 20 employees or less is only obliged to install such re-employment unit if he wishes to dismiss employees within the framework of an early retirement (system of unemployment benefits with employer top-up) at an age lower than the age that is normally applicable for early retirement within the company. The re-employment unit has to make an outplacement offer to the employees who are dismissed and who participate in the re-employment unit.
Lastly, it is important to note that sectors can have additional procedures (laid down in CBA’s) that could provide for certain information and consultation rules, etc., which, even in the case of multiple dismissals, do not fall under the European and national collective dismissal rules.
Termination of an open-ended employment contract through serving a period of notice or payment of an indemnity
Employment contracts are generally terminated through serving a notice period or the payment of an indemnity in lieu of notice. A combination of both, where the serving of a notice period is followed by the payment of an indemnity for the remainder of the notice period is also possible. An employer does not require any authorisation to dismiss an employee (except for the dismissal of an employee representative or a prevention advisor, see below). As part of the recent Belgian labour law reform, notice periods for blue- and white-collar employees are now aligned for employment contracts taking effect from 1 January 2014. These notice periods are fixed by law and only depend on the employee’s seniority. They are expressed in weeks.
For open-ended contracts that took effect before 1 January 2014, the notice period to be observed in case of dismissal comprises two parts which must be added up. The first part is based on the employee’s seniority acquired before 1 January 2014 and will be calculated according to transitory rules; the second part is based on the employee’s seniority as of 1 January 2014 and is calculated on the basis of the new regime. A legislative modification took place in 2018 and changed (mostly reduced) the notice period for the termination of the employment contract in the first 6 months, applying to all terminations occurring after 1 May 2018.
The table below summarises the rules with regard to the notice periods to be respected for open-ended contracts that took effect on or after 1 January 2014 (only step 2), on the one hand, and contracts that took effect before 1 January 2014 (step 1 + step 2 = step 3), on the other hand.
Notice period based on seniority before 01/01/2014