The Bill of 12 April 2011 in respect of new termination rules for employment contracts will apply to employment contracts starting from 1 January 2012. The new rules are a first step towards harmonising the social status of blue-collar and white-collar workers.
These new rules will also apply to contracts which start before 1 January 2012 and which are interrupted (with the same employer) for more than 7 days after 1 January 2012.
The new rules for blue collar workers
If the contract is terminated by the employer the following notice period applies:
Length of Service
Notice period for blue collar workers
Less than 6 months
28 days
As from 6 years and but less than 5 years
40 days
As from 5 years and but less than 10 years
48 days
As from 10 years and but less than 15 years
64 days
As from 15 years and but less than 20 years
97 days
More than 20 years
129 days
If the contract is terminated by the blue collar worker, the notice period is 14 days. If the blue collar worker has more than 20 years' continuous service (seniority) with the same employer, the notice period is 28 days. The trial period regulations remain unchanged.
Any provisions in respect of termination of employment contracts agreed upon in a Joint Committee remain applicable. However, the law provides for the Industry Sectors to determine whether these existing measures should be maintained given the new legislation. The Sectors have to make their decision by 31 December 2012 at the latest. If not, the existing provisions will be made compliant with the new rules by Royal Decree with effect from 1 January 2013.
The new rules for white collar workers
It is important to stress that, for contracts starting after 1 January 2012, parties will no longer be able to determine the relevant notice periods (for employer and employee) for terminating employment contracts by common agreement (e.g. by using all sorts of formulas and other methods). Standard terms will apply without further negotiation (as is currently the case for employees earning less than 30.535 EUR[1] gross a year).
However, there is one exception: where the employee earns at the start of his employment contract more than 61.071 EUR[1] gross a year, the notice period may be agreed upon between parties before the employment contract starts, as long as the parties comply with the notice period of 3 months per started period of 5 years' seniority. This rule already exists in the current legislation.
Furthermore, the role of the judge will also change. The judge will no longer have any power to determine a notice period. He will only have a role to play in respect of dismissal related to enforce the legislation applicable, inappropriate terminations, grave misdemeanour, protected workers and other infringements of the law.
Termination by the employer
Please note that for employees earning less than 30.535 EUR[1] gross annually, the notice period is still 3 months per started period of 5 years' seniority. Therefore, nothing changes in this case.
As for termination periods for white collar workers earning 30.535 EUR[1] gross annually or more, the employer will have to comply with the following termination periods:
Length of service
Notice period from 1 January 2012
Notice period from 1 January 2014 and later
Less than 3 years
91 days
91 days
As from 3 years and less than 4 years
120 days
116 days
As from 4 years and less than 5 years
150 days
145 days
As from 5 years and less than 6 years
182 days
182 days
As from 6 years and less than 7 years
210 days
203 days
As from 7years and less than 8 years
240 days
232 days
As from 8 years and less than 9 years
270 days
261 days
As from 9 years and less than 10 years
300 days
290 days
As from 10 years and less than 11 years
330 days
319 days
As from 11 years and less than 12 years
360 days
348 days
As from 12 years and less than 13 years
390 days
377 days
As from 13 years and less than 14 years
420 days
406 days
As from 14 years and less than 15 years
450 days
435 days
As from 15 years and less than 16 years
480 days
464 days
As from 16 years and less than 17 years
510 days
493 days
As from 17 years and less than 18 years
540 days
522 days
As from 18 years and less than 19 years
570 days
551 days
As from 19 years and less than 20 years
600 days
580 days
As from 20 years and less than 21 years
630 days
609 days
As from 21 years and less than 22 years
660 days
638 days
Sector agreements (Collective Bargaining Agreements) will not be able to review (upgrade) the notice periods for white collar workers.
Other elements
* The prohibition on arbitrary dismissal (willekeurig ontslag/licenciement abusive) remains applicable;
* The regulations relating to calculating the start of the notice period for blue-collar workers (i.e. on the Monday following the week during which notice of termination was given) and for white-collar workers (i.e. the first day of the month following the month during which notice of termination was given) continue to apply;
* Temporary work will be taken into account for the purpose of length of service in order to calculate the notice period (special rules apply);
* The calculation for the payment in lieu of notice remains the same but a specific formula will be used for white collar workers: i.e. daily salary for the white collar employee (monthly salary x 3 / 91) multiplied by the number of days listed above (see table 2 and 3). Only the variable pay of the last twelve months needs to be taken into account (some case law recently took an average of the last few years into account).
E.g. An employee has 5 years' continuous service and the following salary package:
* 2,500 EUR gross a month to be increased with holiday pay and statutory year end bonus;
* variable pay of 1,000 EUR gross a year (1.157 EUR including holiday pay);
* employer’s contribution into the meal voucher of 4,91 EUR a month (1.134 EUR on an annual basis).
The employee is entitled to a severance pay equal to 3.090,9 x 3 / 91 x 182 = 18.545 EUR gross.
* There is no planned transitional period. These new measures will therefore take effect from 1 January 2012 for contracts starting as from 1 January 2012 (subject to the exceptions mentioned above).
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[1] Amount for 2011 – reviewed annually
