Social elections 2020: watch out for the start of the occult period
With the holiday’s over, it's time to be aware of the next important date in the pre-election process, namely day X-30, the start of the occult period, on 12 January 2020 at the earliest (depending on the chosen election date).
The start of the occult period on day X-30, implies the start of the specific protection against dismissal for (candidate) employee representatives in the works council and health and safety committee. Non-compliance with the specific dismissal rules for these employees set in the Act of 19 March 1991 may expose the employer to the reintegration of the dismissed employee and/or the payment of a draconic protection indemnity.
X-30: Start of the occult period: severe dismissal protections of candidates
The following employees benefit from a specific protection against dismissal determined in the Act of 19 March 1991:
- members of works councils and health and safety committees (and the substitutes); as well as
- the non-elected candidates if:
- their application was validly submitted;
- they meet the eligibility requirements; and
- appear on the final candidate list.
The protection period starts on day X-30. However, at that moment, employers are not aware yet of the candidates within their company. They will only have a clear view on the candidates on day X+35.
Therefore it is highly discouraged to dismiss employees during this 65 days’ period, i.e. the “occult period”. Employers might indeed be exposed to having dismissed a protected employee without taking into account the specific procedure to do so. Please note that caution is even still required after X+35 since the occult period may be extended until day X+76 (Y-14) due to possible replacements of candidates.
Concretely, employers are highly discouraged to dismiss employees from 12 January until 10 May 2020 (included) unless one of the situations below occurs:
- dismissal for serious cause, recognized by the labor court; or
- dismissal for economic or technical reasons previously recognized by the competent joint committee.
In case of an irregular dismissal the employer is exposed to the following sanctions:
- the dismissed employee can request his/her reintegration within the company;
- a dismissal indemnity is due:
- lump-sum indemnity between 2 and 4 years’ remuneration depending on the seniority of the employee;
- variable indemnity: equal to the remuneration for the period until the end of the term of the mandate. This part is not due in case the employee did not request his reintegration.
For the sake of completeness, please note that:
- the given notice is regular even when the notice period starts during the occult period. Therefore the dismissal must have been notified before the start of the occult period. However, if the employee would become a candidate during his/her notice period, no dismissal with immediate effect (except in the two for mentioned cases) is possible;
- amongst other cases, the termination of an employment agreement by mutual agreement or due to force majeure (even medical) are excluded from the protection against provided for by the Act of 19 March 1991.
KrisDe SchutterPartner Attorney at law
Kris De Schutter is a partner in our office in Brussels and member of Loyens & Loeff’s Employment & Benefits Practice Group. He has extensive experience in alternative (flexible) remuneration, restructuring and change processes.T: +32 2 700 10 13 E: firstname.lastname@example.org