A recently approved act settles a discussion on the maximum notice period to be observed in case of resignation by blue-collar workers who were already employed by their employer on 1 January 2014. In addition, the act responds to Constitutional Court rulings on the fact that making a distinction with respect to the notice period to be observed in relation to white-collar workers who were already employed on 1 January 2014, based on their level of earning, runs contrary to the constitutional principle of equality.
The unified statute act – standardisation of notice periods
One of the most important reforms of the Act on the introduction of the unified statute between blue-collar and white-collar workers (“the Unified Statute Act”) was the standardisation of notice periods, which became applicable as of 1 January 2014.
A transitional arrangement was also introduced, for employees who were already employed by their employer before 1 January 2014. For these employees, the notice period consists of the sum of the notice period based on their seniority until 31 December 2013 on the one hand (and taking into account, in principle, the applicable calculation rules at that time) and the new notice periods as from 1 January 2014 on the other hand.
Discussion on the maximum notice period of 13 weeks in case of notice given by blue-collar workers
In case of resignation by the employee, the Unified Statute Act introduced notice periods proportional to the employee’s seniority, maxing out at 13 weeks of notice in case of 8 years of seniority (article 37/2 §2 of the Employment Agreements Act).
Specifically with respect to the scenario in which an employee resigns and the above-mentioned transitional arrangements are applicable, the Unified Statute Act contained the general principle that the sum of the two notice periods (pre and post 1 January 2014) cannot exceed 13 weeks. However, some practitioners argued that – in the situation where a blue-collar worker who was already employed before 1 January 2014 gives notice – the notice period could in fact still exceed this maximum of 13 weeks. As this interpretation was not in line with the legislator’s initial intention, the latter decided to intervene by means of the recently voted act.
Exceptions for higher-earning white-collar workers violate principle of equality
The Unified Statute Act included exceptions to the aforementioned maximum total notice period of 13 weeks in case of resignation by the employee, by way of specific transitional arrangements for two categories of higher-earning white-collar workers. For white-collar workers with an annual salary of more than EUR 32,254 on 31 December 2013, the maximum notice period in case of resignation was set at 4,5 months and for white-collar workers with an annual salary higher than EUR 64,508 on 31 December 2013, it was set at 6 months.
In its transitional arrangements, the Unified Statute Act also contained varying provisions on the calculation of the first part of the notice period to be observed by the employer in case of dismissal of a higher-earning white-collar worker. Instead of the general principle – i.e. that the legal, statutory and conventional rules applicable on 31 December 2013 have to be applied – the Act stated that, in case of termination of the employment agreement of a white-collar workers whose salary exceeded EUR 32,254 on 31 December 2013, the first part of the notice period is set at one month per started year of seniority, with a minimum of three months.
The Constitutional Court, however, repeatedly ruled that these distinctions made between different categories of white-collar workers based on their earning was not in line with the constitutional principle of equality.
The solution: abolishment of (part of) the transitional arrangements
In order to settle the discussion on the maximum notice period in case of resignation by blue-collar workers and to respond to the Constitutional Court’s findings, the recently approved act firstly abolished the Unified Statute Act’s transitional arrangements in case of notice given by an employee who was already in service on 1 January 2014 altogether. This means that, once the new act enters into force, the notice periods included in article 37/2 §2 of the Employment Agreements Act will apply to every situation in which the employee resigns. As such, a maximum notice period of 13 weeks will apply across the board in such a scenario.
Secondly, the new act also abolished the above-mentioned transitional arrangement that applied in case of termination, by the employer, of the employment agreement of a higher-earning white-collar worker who was already employed on 1 January 2014. As a result, once the act enters into force, the first part of the notice period – based on the employee’s seniority until 31 December 2013 – will have to be calculated taking into account the legal, statutory and conventional calculation rules that were applicable then, instead of the specific calculation formula that’s currently applicable.
The new act will enter into force six months after its publication in the Belgian Official Gazette and will not affect any notice given before the entry into force.
