Saturday is (still) a working day
05 Dec 2022
Book I – ‘General Provisions’ – of the new Civil Code will enter into force on 1 January 2023 and although its provisions don’t apply yet, they’ve already caused quite a stir among employment law practitioners. More specifically, a lot has been written about the Code’s new articles on the calculation of deadlines and the notion of ‘working days’ in this respect. Going forward, if a deadline is defined in working days, it won’t include legal holidays, Sundays and Saturdays. The fact that Saturday will no longer be considered a working day in this respect would have a significant impact in Belgian labour law. Indeed, Belgian labour law has a lot of deadlines that are defined in working days. Up until now, based on case-law by the Belgian labour courts – and confirmed by the Court of Cassation – Saturday had to be considered a working day as far as those deadlines were concerned and the new Civil Code would change this. Following a request for legislative intervention by the National Labour Council, a new draft act aimed at keeping the status quo is, however, coming to the rescue.
A change for the better
Over the past years, the Civil Code has been undergoing a much needed modernisation, applied in different stages. On 1 January 2023, Book I – ‘General Provisions’ – of the updated Civil Code will enter into force. In its article 1.7, it stipulates that legal holidays, Sundays and Saturdays are to be included in respect of deadlines, except if they’re explicitly excluded or if the deadlines are defined in working days. In this respect, the notion of ‘working days’ is considered as ‘all days other than legal holidays, Sundays and Saturdays’. The article concludes by stating that these principles apply unless the law provides otherwise.
A change for the worse
This definition of working day, which excludes Saturdays, would have a large impact on Belgian labour law, which contains a host of deadlines that are defined in working days. This includes i.a. termination with notice by registered mail and dismissal for cause. Important in this respect is the fact that Belgian labour law doesn’t provide for a definition of working day that’s rooted in law. To make up for this, the Belgian labour courts stepped in and, with confirmation by the Court of Cassation, have ruled for decades that – as far as deadlines are concerned – a working day is every day of the week, including Saturday, but excluding legal holidays and Sundays. However, as of 1 January 2023, the notion of working day from the new Civil Code would in principle become applicable because exceptions to this new definition are only possible if provided for by law, which isn’t the case in Belgian labour law.
An example to make it more tangible: the deadline to be taken into account for the notice letter to be sent by the employer in the event of a termination of the employment agreement by giving notice would be impacted. The Employment Agreements Act indicates that the notice period starts on the first Monday following the week in which the employee is notified of the termination. Moreover, the Act states that, if the employee is notified by registered mail, the letter is considered to be received by the employee on the third working day after it’s been sent. If Saturdays would no longer be considered as a working day in this respect, the notice letter should be sent by registered mail no later than Tuesday (instead of Wednesday) in order for the notice period to start on the following Monday.
And all remains the same…
In their advice nr. 2325 of 16 November 2022, the National Labour Council (‘NLC’) was of the opinion that changing the notion of working day that’s currently applicable and has been for many years, would create significant problems and ambiguity. They therefore considered it necessary to maintain the current system, in order to guarantee legal certainty and foreseeability, not only in the field of labour law, but also the fields of social security law and social welfare, which could also be impacted. They therefore asked the government to intervene as soon as possible.
The NLC’s call was heard and several members of parliament, representing all majority parties, tabled a new draft act in the Chamber of Representatives on 30 November 2022. This draft act makes use of the abovementioned possibility to derogate by law from the new concept of working days in the Civil Code. As such, it states that article 1.7 of the Civil Code will not be applicable to the regulations on the employment relationship, social security and social welfare. It’s expected to be voted into law soon, to enter into force on 1 January 2023.
In other words; all remains the same and employers will not have to contend with the changes in practices and policies that the application of art. 1.7 of the updated Civil Code to labour law provisions would have brought about.
If you have any questions regarding the above, or are looking for more guidance in this respect, don’t hesitate to reach out; we’d love to hear from you.
