Prevention advisors, both at the internal and external department for prevention and protection at work, benefit from special protection against dismissal pursuant to the Act of 20 December 2002 on the protection of prevention advisors. The main idea of this protection against dismissal is that, pursuant to article 3 of this Act, the employer can only terminate either the employment contract of the prevention advisor or the capacity of prevention advisor, for reasons that fall outside the scope of the independence associated with the position of prevention advisor or if it turns out that the individual concerned is not capable of duly carrying out the prevention advisor’s duties. To put it in other words, the prevention advisor should not be dismissed in retaliation for the advice given or the decisions taken in his capacity as prevention advisor.
However, article 4 3° of this Act provides that the procedures for waiving this protection against dismissal do not apply "in case of collective dismissal in which the procedures laid down pursuant to chapter VIII of the Act of 13 February 1998 on measures in favour of employment apply". Hence, according to the wording of the Act, prevention advisors can be dismissed in the exact same way as the other employees if the procedure laid down in the Renault Act applies.
In its judgment dated 29 May 2017, the Supreme Court had asked the Constitutional Court to answer two preliminary questions on this matter. As a matter of fact, the plaintiff pointed out that prevention advisors risk being included in the list of employees that are subject to collective dismissal as a means of retaliation. In this regard, the plaintiff pointed out that it is strange that prevention advisors could be dismissed in the context of collective dismissal without any particular procedure needing to be complied with, even if the employer is still legally required to have a prevention advisor after the collective dismissal. In this context, the Supreme Court whether the difference in treatment between the protection against dismissal outside of collective dismissal and the protection against dismissal (or rather, the lack thereof) in case of collective dismissal was compatible with the principle of equality laid down in the Constitution.
In its judgement dated 7 June 2018, the Constitutional Court concluded that the difference in treatment is truly compatible with the Constitution. As a matter of fact, the criterion used is objective and relevant, in the sense that, in article 62 of the Renault Act, collective dismissal is defined as "a dismissal for one or more reasons that are unrelated to the individual employees." If this is the case, the reason for dismissal does not lie in the independence of the prevention advisor.
However, the Constitutional Court pointed out that there is a risk of the employer "adding" the dismissal of the prevention advisor based on individual reasons to a collective dismissal. Although such a dismissal could be discussed in the context of the information and consultation process, this fact does not categorically exclude the risk of such a dismissal.
The Constitutional Court therefore noted that, if necessary, it is up to the Employment Tribunals or the president of the Employment Tribunal in case of interim proceedings to rule whether the reasons for dismissal are real. Without spelling it out explicitly in its judgment, the Constitutional Court seems to rule that the procedures from the Act of 20 December 2002 do apply if the employer is unable to demonstrate that the dismissal of the prevention advisor is part of the collective dismissal, ie based on the same reasons.
Therefore, in order to reduce the risk of the prevention advisor challenging his dismissal, it is highly recommended, in the context of collective dismissal, to provide comprehensive details as to why this collective dismissal also includes the dismissal of the prevention advisor in the documents shared with the staff representatives or the workers themselves under the collective dismissal procedure. To be on the safe side, the procedure for waiving the protection against dismissal might even be applied anyway, notwithstanding the fact that this is strictly speaking not a legal requirement if the dismissal is part of a collective dismissal.
The fact that, even after the collective dismissal, the employer still needs to have a prevention advisor, is not decisive according to the Constitutional Court. As a matter of fact, the prevention advisor position is not necessarily a full-time role, which makes it perfectly possible to eliminate the other position of the prevention advisor in the context of collective dismissal and, hence, to dismiss the current prevention advisor and to appoint another employee whose main position does remain in place, as a part-time prevention advisor.
Finally, we wish to point out that the health and safety advisor might challenge his dismissal on another basis than the Act of 20 December 2002, for instance, based on anti-discrimination legislation or based on collective bargaining agreement No. 109. Moreover, the respective indemnities under these protections against dismissal shall be calculated on the entire salary, whereas the protection indemnity under the Act of 20 December 2002 only relates to the salary for the work performed in the capacity of prevention advisor, meaning it might be more beneficial for the prevention advisor to invoke another legal ground.
In its judgement dated 7 June 2018, the Constitutional Court declared the exception on the protection against dismissal of prevention advisors constitutional in case of collective dismissal, but the concrete content of this exception remains largely unclear.