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Are employers required to give notice of termination?
There are several ways to terminate an employment contract. It may come to an end by mutual agreement between the employer and the employee at any time (eg, during the notice period or when the contract is suspended), either with immediate effect or at a later date. Such termination is subject to no formalities. The employer may not exert pressure on the employee to agree to termination. Mutual termination of the employment agreement does not give rise to the payment of an indemnity. However, the employer is free to pay compensation.
The employment agreement may also come to an end at its expiration if the contract is for a fixed period or for a specific task. It may also be automatically terminated if either party cannot perform its obligations under the employment contract and the cause of such non-performance is permanent.
An employer dismissing an employee may either give him or her notice of termination (during which period the employee must continue to work) or terminate the contract immediately by paying a severance indemnity in lieu of notice. The employer may terminate the contract during the notice period by paying an indemnity equal to the salary which the employee would have received for the remainder of the notice period. An employee who resigns must also give notice to the employer or pay an indemnity in lieu of notice.
An indemnity in lieu of notice is due when the employer or employee terminates the employment contract without notice or with insufficient notice. At any time during the notice period, the terminating party may decide to pay an indemnity in lieu of notice.
An employment agreement can also be deemed to be terminated due to the unilateral modification of one of its essential elements.
What are the rules that govern redundancy procedures?
For individual dismissals, an employer which wishes to terminate the employment contract of one of its employees need not consult or obtain prior approval from the works council or any other regulating body or court, unless the employee has protected status.
Notice of termination may be given only in a written statement which specifies the start date and the duration of the notice period. If the contract is terminated by the employer, the statement must be sent by registered mail or served by a bailiff. If the employee resigns, he or she may give notice by registered mail, writ served by a bailiff or a simple letter handed to the employer. If notice is given by registered mail, the notification is deemed to be effective on the third working day following the date of mailing. For this purpose, Saturday is considered to be a working day.
There are no termination formalities when a contracting party decides to terminate an employment contract with immediate effect. However, it is common practice to confirm such termination by registered letter. In addition, where a severance indemnity is offered, it is advisable to specify the amount of the indemnity or the duration of the notice period in lieu of which the indemnity is paid.
Termination for serious cause
Either party may terminate an employment contract without notice and without paying an indemnity if grave misconduct is involved.
A contract may not be terminated for serious cause if the cause was known to the terminating party for more than three working days before termination. Further, the justification for terminating the contract without notice or before the expiry of its term must be notified to the other party within three working days of termination. To be valid, such notification may be made by registered mail, writ served by a bailiff or hand delivery of a written document to the other party. In order to avoid problems of proof, it is advisable to use one of the first two methods.
An employment contract can also be terminated for serious cause when the contract is suspended, during the notice period or during the probationary period.
Article 35 of the Law on Employment Contracts provides little explanation of what is meant by ‘serious cause’. It states only that it must be a fault that makes professional cooperation between the employer and the employee immediately and definitively impossible. The concept of serious cause is interpreted restrictively by the courts.
Are there particular rules for collective redundancies/mass layoffs?
Belgian labour law contains detailed rules governing the termination of employment contracts as a result of collective redundancy or plant closure. Although these are not included in the Law on Employment Contracts, the dismissal of several employees within a short period without the cessation of the employer’s main activities (or the activities of a division) may result in additional liabilities for the employer. In the event of collective redundancy, the employer must meet certain information and consultation obligations and pay a special indemnity. The Law of June 28 1966 applies to undertakings, including company divisions, which have employed at least 20 employees on average during the previous calendar year.
What protections do employees have on dismissal?
Some categories of employee enjoy special protection in case of dismissal and cannot be dismissed under the general rules described above. An employer wishing to dismiss a protected employee needs specific grounds to do so (or proof that the dismissal is unrelated to the protection status of the employee), and must follow special procedures.
The main categories of protected employee include members and non-elected candidates of the works council or the committee for prevention and protection in the workplace, trade union delegates, pregnant women, employees in time credit systems and employees who have filed a complaint for harassment.
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