Social elections 2020: hide and seek - the blackout period impacts dismissals!
Belgian legislation grants a specific dismissal protection to persons who are candidates to become (regular or substitute) employee representatives for the works council or the committee for prevention and protection at work. This protection against dismissal starts on date X-30, falling sometime between 12 and 25 January 2020, and marks the start of the so-called “blackout period” of the dismissal protection (occulte periode/période occulte).
The dismissal protection entails that the candidate employee representatives can only be dismissed in the following circumstances:
a dismissal for cause that has been priorly approved by the Belgian labour courts or;
a dismissal for economic or technical reasons that have been priorly acknowledged by the competent Joint Committee.
Every other dismissal of candidate employee representatives is prohibited and, if these rules are not complied with, severe compensation might be due, possibly including an indemnity corresponding to up to 8 years’ salary. The protection of candidate employee representatives starts on date X-30 and lasts for 2 or, in most cases, 4 years (i.e. for elected candidates and for non-elected first-time candidates).
The period from X-30 until X+35 (17 to 30 March 2020) is referred to as the blackout period of the dismissal protection. This is because, on date X-30, the employer might not have any information about the possible candidates yet. The representative trade unions are only required to disclose the names of the candidates in March 2020, on date X+35, 65 days after the start of the blackout period. Therefore, employers should exercise extreme caution when considering a dismissal between January and March 2020, as the identity of the candidates is still unknown (even though they can already benefit from the protection). Note that an employee who is dismissed during the blackout period can still be nominated as a social elections candidate by a representative trade union, even though he’s no longer part of the company’s workforce on X+35. In such a specific case, we recommend seeking tailored legal advice as soon as possible.
In conclusion, be wary of dismissals during the blackout period (from 12-25 January to 17-30 March 2020) and keep in mind that the protection of candidates lasts for (2 or) 4 years!
For more information about the 2020 social elections, visit our dedicated social elections website or contact one of our experts.
