Brussels HR Law Focus Newsletter No.4
Our "HR Law Focus" newsletter is released every time we judge that new legislation or case law might be important for your business.
Grounds for dismissal: recommendations!
One of the steps following harmonisation of the social statuses of manual and office workers is the introduction of an obligation on employers to state grounds for dismissal.
Some years ago, Europe already pointed out in its Charter of Fundamental Rights of the European Union (article 30 – 2010/C – 83/02) that every citizen has the right to protection against unjustified dismissal.
In compensation for the reduced notice periods for office workers in the framework of harmonisation of the social statuses of manual and office workers enacted late 2013, CBA 109 introduces an obligation to state grounds for dismissal, which applies to all terminations notified or given on and after 1 April 2014.
In principle, the CBA applies to all types of employment contracts that are terminated, except for a number of contracts:
- of a temporary nature (e.g. not during the first six months of an open-ended employment, contracts for students, interim contracts, );
- terminated for a number of specific economic reasons (collective dismissal, closure of a company, joining the scheme of unemployment with company allowance, etc.);
- terminated at the end of a person’s working career (taking up retirement pension, final end of occupational activities, etc.);
- where the employer has to follow specific procedures in respect of termination of employment contracts (imposed by law or CBA on industry-sector or company level; e.g. in the insurance and banking sector, where an information procedure is provided for).
Please note that the present regulations on unjustified dismissal (willekeurig ontslag/licenciement abusif – the present article 63 of the Act of 3 July 1978) remain applicable until 31 December 2015 for some sectors of industry (article 70§1 of the Act of 26 December 2013, e.g. in the diamond, textile, lumber,… industries); for some sectors - mainly construction activities - article 63 remains applicable until further notice. For these, the procedure described below will not apply as from 1 April 2014.
Procedure for stating grounds
An employer can state the grounds for the termination of employment of his own initiative or a request for the grounds for termination can be made by the employee, which has to be explicit and in writing; the employee needs to make the request:
- in cases of immediate termination with severance pay: within 2 months after termination of the contract;
- in cases of serving a notice period: within 6 months after notice is served; the request may not be made 2 months after the effective date of termination.
The employer has to respond within 2 months of receiving the request. If he fails to do so, he will be liable to the employee for a 2-week indemnity. If he gave the necessary information concerning the reasons for dismissal of his own initiative, he does not have to respond the request made by the employee.
Burden of proof
Notwithstanding the sanction mentioned above, it is very important that the employer should state the grounds for termination of the employment contract as, in this case, the burden of proving a manifestly unreasonable dismissal (kennelijk onredelijk ontslag/ licenciement manifestement déraisonnable) rests on the employee and not the employer. Hence, it might even be a good idea for employers to state grounds of their own initiative.
A manifestly unreasonable dismissal
Given the employee can, and will, know the reasons for his dismissal, he will also be able to judge the nature of the dismissal and whether it qualifies as manifestly unreasonable.
A manifestly unreasonable dismissal is dismissal from an open-ended contract that has nothing to do with
- the behaviour of the employee
- the aptitude of the employee (for the work to be performed)
- the (proper) functioning of the company
and which a normal, reasonable employer would not have decided on.
This last specification is meant to underline the 'dismissal power' of the employer, which is not under attack from the new legislation. However, we assume that only the courts will in due course establish with real certainty what the term means. That said, it seems clear from CBA 109 that the circumstances of the termination (how it is effected, e.g. over-diligent handling of the termination) are not to be considered as constituting a manifestly unreasonable dismissal.
In cases of manifestly unreasonable dismissal, the employer will be fined between 3 and 17 weeks’ salary (this can be added to the fine for not stating grounds for dismissal, thus resulting in a maximum fine of 19 weeks’ pay). This indemnity is not subject to social security contributions (see our newsletter 2014/3).
It is clear that companies will be much more vigilant in properly applying and carrying out assessment procedures; in cases of poor performance of the employment contract, the employer will be more inclined to notify the employee of this in writing.
Moreover, in some, if not most, situations, it might be advisable from the employer's perspective for him to either state the grounds for dismissal of his own initiative or, at least, respond to the employee’s request to do so, not only to avoid the fine but also to avoid himself having to provide evidence that the reasons cited for dismissal are not manifestly unreasonable.
Last, we would conclude that, when recruiting, it is advisable for employers to ask applicants for the (written) reasons for termination by a previous employer. In our opinion, this should in principle form part of the references which an employer is entitled to ask for.
Please do not hesitate to contact us should you require further information.