When I tell people I am an Employment lawyer, it is not uncommon for them to assume out loud my days must be filled swinging metaphorical axes and terminating employees on all sides. While I always reassure them that that is not quite the case, today’s blog will not help this misconception disappear. The message of this post is effectively that if you are considering terminating employees in Belgium (in particular for underperformance), the next handful of weeks may be the best time to do this.
This applies only if your company is organising “social elections” in May 2024. These elections, held every four years, choose the members of the Works Council and Health & Safety Committee, assuming that the business has at least 50 or 100 employees (for the Committee and the Works Council respectively).
The next elections will be held between 13 and 26 May 2024. The first steps in the election process are to be taken as of December of this year.
Under Belgian law, not just elected employee representatives but also (unsuccessful) candidates in the social elections enjoy heavy protections of their position which include a more or less blanket ban on dismissals. Candidates in the social elections may only be terminated in two situations:
- For cause, if recognised in advance by the Employment Tribunal (and possibly on appeal by the Labour Court); or
- For economic or technical reasons, which are also to be recognised in advance by the Joint Committee (industry-level legislative body) to which the company belongs.
In practice, it is very difficult to terminate protected employees, even on the grounds above, and if those prior procedures are not complied with, the employee is entitled to a hefty protection indemnity (potentially amounting to several years’ salary).
The protection lasts until the new members of the works council or committee are elected, except where the employees runs for a new term, in which case they are protected for a new period of 4 years.
The difficulty with terminations in the months leading up to the elections is that the protection against dismissal kicks in at a time where it isn’t yet known to the company whether any given employee will be a candidate in the elections. The protection of prospective candidates in the social elections commences on day X-30 (where date X is 90 days before the election date). Depending on the date of the elections, X-30 will therefore be some time between 14 and 27 January. The candidate lists will however only be communicated to management on day X+35, which will be between 19 March and 1 April. This two month period of uncertainty between January and April is called the “occult protection period.” [To be clear, this is “occult” in the sense of dark or obscured and not in the sense of mystical, supernatural or magical, though there is undeniably something of the night about a protection possessed by a population unknown to the employer which must respect it.]
If an employee is terminated during the occult period, the protection is so strong that they may still stand as a candidate in the elections and may thus retroactively obtain protection against dismissal, even if the employment contract no longer exists at the time of the nomination of candidacy and even if they may have had no previous intention of standing. The likely thinking behind this is to make it harder for employers facing elections to neuter the process by dismissing all the likely trouble-makers in advance. The unions may therefore still include this employee in the candidates list, and this would not be considered unfair or abusive on the part of the ex-employee or the union. If the employer wishes to exclude this former employee’s candidacy, it is required to prove that the employee would never have put themselves forward if they had not been terminated. Employment Tribunals are generally very strict in applying this test, the burden of proof placed firmly on the employer.
If an employee is presented as a candidate only after their termination, the company will have no other choice but to accept the reintegration of the dismissed employee, or to pay the sizeable protection indemnity. Obtaining the prior approval of the Employment Tribunal still at this point is not an option that the legislator has provided.
Because of the uncertainty in the first months of an election year, most relevant companies will refrain from effecting any unnecessary terminations during this time. But once the final candidate lists have been communicated, the employees on these lists become officially more or less untouchable. Terminating them for ordinary (not deliberate) underperformance is no longer an option from this point onward, for the full duration of their mandate (4 years) and potentially thereafter.
Some planning may therefore be advised. If there are employees whose termination has previously been considered but who have so far escaped termination, even though their performance does not improve, now’s the time to send them that final warning (to avoid that the termination be qualified as manifestly unreasonable), or, if their personal file is already sufficiently staffed, to actually proceed to their termination.
There’s a good two working months left until the end of the year. This time may be used to take the measures that may otherwise become very difficult (at least very expensive) in the New Year.