Esther Soetens Mieke D'Hanis September 21 2022 Saturday will no longer be a working day from 1 January 2023 ALTIUS | Employment & Immigration - Belgium Esther Soetens, Mieke D'Hanis Employment & Immigration IntroductionECA does not explicitely define "working day" Changes to Civil CodeBetter safe than sorryIntroductionAlthough the vast majority of companies work from Monday to Friday, Belgian labour law still attaches great importance to Saturdays. When the Employment Contracts Act (ECA) refers to "working days" (eg, the three-working day period for a dismissal for just cause or the registered letter serving notice that takes effect on the third working day after it is sent), Saturdays must always be taken into account. However, the new Book I of the Civil Code will change this. Subsequently, it is likely that employers will have to observe other legal deadlines in the event of, for example, an employee dismissal.ECA does not explicitely define "working day"There are many provisions in the ECA that refer to "working days". In this respect:article 31 states that the employee must submit their medical certificate to their employer within two working days from the start of the work incapacity (unless the work rules provide otherwise);article 35 stipulates that a dismissal for just cause must take place within three working days from the day that the employer knows the facts and that the written explanation of the reason(s) for the dismissal for just cause must be given within three working days following the dismissal; andarticle 37 stipulates that a registered letter giving notice takes effect on the third working day following the date that the letter was sent.However, the ECA does not further specify what exactly is to be understood by "working day". Referring to a comment in the explanatory memorandum to the ECA and to the Act on Annual Holiday, it has so far been "generally accepted" that working days are all the days of the week except for Sundays and public holidays – that is, including Saturdays. This means, for example, that:if the employer becomes aware of serious acts committed by an employee, Caro, on Wednesday, it must dismiss her for just cause on Saturday at the latest, and the human resources manager must go to the post office on Saturday to have the dismissal letter sent by registered mail;a letter giving notice to an employee, Vince, must be sent on Wednesday at the latest for the notice period to start on the following Monday; andif an employee, Camille, becomes ill on Friday, she has to send her medical certificate to her employer on Saturday at the latest, even though her company only operates from Monday to Friday.However, from 2023, these situations will change.Changes to Civil Code Article I.7(3) of the new Civil Code contains the following wording: "Working days are all days other than public holidays, Sundays and Saturdays" (emphasis added). This new rule applies on the condition that no other specific law derogates from it. Since the ECA still does not explicitly state what exactly is to be considered as a "working day", the new Civil Code should be referred to, unless the legislature introduces a different definition of "working days" in the ECA. This new rule will enter into force on 1 January 2023.In practice, this will mean, in the examples above, that:if Caro's employer becomes aware of the facts justifying a dismissal for just cause on Wednesday, then from 1 January 2023 Caro will only have to be dismissed on Monday at the latest instead of Saturday, which means that the employer has an extra weekend to think about this dismissal;the letter giving notice to Vince has to be sent on Tuesday instead of Wednesday, which means that the employer has to send the letter giving notice a day earlier than usual for the notice period to start on the following Monday; andCamille, who fell ill on Friday, only has to send her medical certificate to her employer on Monday instead of Saturday.Better safe than sorry Until the end of 31 December 2022, everything will remain the same. Saturday is, unfortunately for many, a working day in the current state of labour law and must therefore be considered when calculating legal deadlines under the ECA.From 1 January 2023, the new rules included in the new Civil Code will apply. However, the new Civil Code stipulates that Saturday is not a working day "unless another specific law would stipulate otherwise". There is as yet no definite answer as to what should be considered as "another specific law". As noted above, the ECA does not explicitly define what should be considered as a working day. However, the explanatory memorandum of the ECA states that Saturday is a working day, and there are other legal texts within the field of labour law that implicitly refer to Saturday as a working day (eg, the Annual Holiday Act). Although unlikely, it cannot be entirely excluded that the labour courts would qualify this as "another specific law" and still consider Saturday as a working day.Since the new regulations have not yet entered into force, the labour courts have not been able to rule on the exact interpretation of the new Civil Code. Therefore, as long as there is no final decision on the matter by the labour courts, employers are recommended to be cautious and to always apply the most advantageous option for the employee. In practice, this means that from 1 January 2023:in the case of a dismissal for just cause, Saturday is still to be considered as a working day and should therefore be taken into account for the calculation of the double three-day period;the letter giving notice must be sent at the latest on Tuesday instead of Wednesday for the notice period to start on the following Monday; andno immediate penalty should be given to employees who do not take the Saturday into account for submitting their medical certificate.For further information on this topic please contact Esther Soetens or Mieke D'Hanis at ALTIUS by telephone (+32 2 426 1414) or email ([email protected] or [email protected]). The ALTIUS website can be accessed at www.altius.com.