Dismissal in times of temporary unemployment due to force majeure - COVID-19
08 May 2020
It is possible to dismiss an employee during a suspension of the employment agreement. Only in the limited cases provided by law, the notice period will however cease during the suspension of the employment agreement. As a result, the suspension of the notice period will not take place in case the employment contract is suspended because of temporary unemployment due to force majeure.
The impact of suspension on a notice period
According to the Act on Employment Agreements, both the employee and the employer can terminate the agreement during the suspension of the employment agreement. In the event of notice given by the employee before or during the suspension, the notice period will continue during that suspension. In the event of termination of the agreement by the employer before or during the suspension, the notice period is, however, halted for the duration of the suspension.
The most common example is when an employee falls ill after the employer handed him his notice. In such case, the notice period will indeed come to a halt during the time the employee is absent due to illness. Upon return of the employee, the notice period will of course resume.
For example: an employee was dismissed with respect of a notice period of 6 weeks on 6 May 2020. On Monday 11 May, his notice period would commence to end on 21 June 2020. The employee, however, falls ill and hands in a medical certificate that covers his absence from 18 May up to the end of that week. In this case, the notice period will come to a halt during the period of illness and will de facto be extended with one week, in casu until 28 June 2020.
Be aware, not all suspensions are considered for an extension of the notice period
The above is, however, only the case for specific circumstances mentioned by law or accepted by case law, mainly:
annual holidays;
maternity leave and periods of time credit;
pre-trial detention;
incapacity for work;
temporary unemployment due to bad weather;
or temporary unemployment due to economic causes (art. 51 or 77/4 Act Employment Agreements).
The list of suspensions that extend the notice period is exhaustive (Cass., 7 January 1985, nr. 265, 590). The situation of temporary unemployment due to force majeure was not envisaged by the legislator. This thus implies that also now during the COVID-19 pandemic, the notice period of an employee who is dismissed by the employer before or during a period of temporary unemployment due to force majeure will not be extended. Be aware, in case of temporary unemployment due to economic reasons, the notice period does get extended.
Caution is however advised, on 29 April 2020, a bill was proposed to equally extend the notice period in case of suspension of the employment agreement due to force majeure as a result of the COVID-19 pandemic. The situation might thus change rapidly.
Attention points when dismissing an employee on temporary unemployment due to force majeure
Keep in mind that the notice period of the employee on temporary unemployment due to force majeure will not be suspended. Political initiatives are however being taken to change this, it is thus advisable to follow up closely.
Should you choose to terminate the employment agreement without respect of the (full) notice period, you will owe a severance payment. This severance payment is based on the salary the employee would have earned if he were not temporarily unemployed.
When a company is currently making use of the measures of temporary unemployment due to force majeure, the motivation of dismissal as provided by CBA 109 shouldn’t be a problem. The economic reasons arising from the corona crisis can easily be proven.
Should you need our assistance in the matter, don't hesitate to contact us.
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