Letting go of the past - no more contractually shortened notice periods for blue-collar workers

Jun 29, 2021

In its judgment of 12 April 2021, the Belgian Court of Cassation ruled that employers can no longer make use of the (contractually) shortened notice periods for blue-collar workers who started working during the period from 1 July 2013 to 31 December 2013. Consequently, the legal notice periods as indicated in the Unified Status Act and the Employment Contract Act must be respected.

Background and backpack 

According to article 60 of the ‘old’ Employment Contract Act, as applicable until 31 December 2013, parties could contractually (by employment contract or collective bargaining agreement) deviate from the legally determined notice period for blue-collar workers if  an employee was dismissed within the first six months of their employment contract. In such a case, it was possible to shorten the notice period for a blue-collar worker to (a minimum of) seven days. 

In January 2014, the Unified Status Act was implemented, in which a (more) unified status for blue-collar and white-collar workers was provided. The rules of dismissal and the method for calculating the notice period were given a thorough shake up and article 60 of the Employment Contract Act was revoked. 

The act lays down the new notice periods that must be observed by both employer and employee when terminating an open-ended employment contract as from 1 January 2014. 

When reforming the notice periods, the Belgian legislator introduced transition rules in order to safeguard the termination rights that had been built up by the employee up until 31 December 2013. For existing contracts, specific transitional measures have been introduced, whereby two different calculation must be made in order to determine the applicable notice period:

  1. In the first calculation, the termination rules that were in force on 31 December 2013 must be applied, taking into account the seniority acquired within the company up until 31 December 2013.

  2. In the second calculation, the new termination rules that entered into force on 1 January 2014 must be applied, taking into account the seniority built up as from 1 January 2014.

The sum of the two notice periods constitutes the total notice period that must be adhered to by the employer and employee.

Article 72 of the Unified Status Act thereby explicitly states that the clauses concluded pursuant to the above mentioned article 60 of the ‘old’ Employment Contract Act, which relate to an employment contract that started before 1 January 2014, shall continue to apply up until their expiry.

Shortened notice periods? 

Up until this point, in pursuance of the above-mentioned articles, the notice period up to the end of 2013 (Step 1) for a blue-collar worker, who was dismissed by their employer, did not have six months of seniority prior to 1 January 2014 , and for whom there was a valid clause for the abbreviated notice period, was calculated by applying those contractually abbreviated notice periods.

Indeed, regardless of the seniority at the time of dismissal, the shortened notice period remained applicable for the calculation of the notice period prior to 2014. This was in line with the interpretation and practices of both the National Employment Office and the FPS Employment, Labour and Social Dialogue.

A new twist from the Court of Cassation

Despite the above practice, the Court of Cassation, however, decided in its judgement of 12 April 2021 that the contractually shortened notice period - being applied through the ‘old’ article 60 of the Employment Act and article 72 of the Unified Status Act - can only be used if the employee is dismissed within the first six months following the start of their employment contract. 

Given the fact that it is no longer possible to conclude an agreement in light of the ‘old’ article 60 of the Employment Act, article 72 of the Unified Status Act has now been obsolete since mid 2015. 

Consequently, if an employer dismisses a blue-collar worker today, they can no longer make use of this beneficial clause when calculating the notice period up to 31 December 2013. The employer has to respect the ‘normal’ legal notice periods as indicated in the Unified Status Act and the Employment Contract Act. If they do not, they might face a claim for additional payments.

Did you conclude a clause to contractually shorten the notice period of your employee in pursuance of article 60 of the Employment Contract Act and are you considering the dismissal of this employee? Then make sure to take the above-mentioned case law into account when calculating the notice period. Feel free to contact PwC Legal. We are always happy to support you.

Contact us

Pascale Moreau

Pascale Moreau

Lawyer - Partner, PwC Legal BV/SRL

Tel: +32 479 90 02 76

Jessica De Bels

Jessica De Bels

Lawyer - Senior Managing Associate, PwC Legal BV/SRL

Tel: +32 472 46 98 19

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