Grounds for Termination
From 1 April 2014, all employees with more than six months of seniority have the right to be informed of the reason for their dismissal. If the employer fails to inform the employee of the reason for dismissal, the employee can require the employer to give an explanation. If no (timely) explanation is provided, the employer owes a lump-sum civil fine of two weeks of salary. The employee is entitled to dispute the reason for dismissal before the labour court.
A collective dismissal or the closure of an undertaking triggers the prior information and consultation obligations towards the employees (either through the Works Council or, if there is none, the Trade Union Delegation, or, failing this, the employees in person). The intention to proceed with a collective dismissal or closure must also be communicated to the competent administration (the director of the sub-regional unemployment office). In principle, a collective dismissal gives rise to the payment of a special monthly compensation during a period of 4 months, in addition to any indemnity in lieu of notice.
In case of closure of an undertaking and if the conditions are met, the employees will be entitled to a closure indemnity equal to a fixed amount per year of seniority within the undertaking and per year exceeding the age of 45, with a maximum total of 6.492,7 € (figure in 2020). In the majority of cases, employers and trade union organisations establish a social plan granting additional compensation to the employees’ concerned and other measures with a view towards reducing the consequences of the collective dismissal (e.g. early retirement schemes).
Employment contracts are generally terminated through serving a notice period or the payment of an indemnity in lieu of notice. An employer does not require any authorisation to dismiss an employee (except for the dismissal of an employee representative or a prevention advisor, see below). As part of the recent Belgian labour law reform, notice periods for blue- and white-collar employees are now aligned for employment contracts taking effect from 1 January 2014, and depend only on the employee’s seniority.
Either of the parties may terminate the employment contract for serious cause, irrespective of whether this employment contract had been entered into for a fixed term or for an indefinite term. ‘Serious cause’ is defined as a fault so serious that it renders any continuation of the working relationship immediately and definitively impossible. Where an employment contract is terminated for serious cause, no notice period needs to be observed nor does any compensation in lieu of notice have to be paid.
In case of a termination for serious cause, the employer needs to strictly observe the following formalities: he must dismiss the employee within three working days as of the day he became sufficiently aware of the serious facts and he must inform the employee, by registered mail, of the grounds of his/her dismissal at the same time or within another 3-working-day-period.
Is Severance Pay Required?
An employer can choose to either terminate an employment contract with the granting of a notice period or to terminate the employment contract immediately with the payment of an indemnity in lieu of notice. A combination of both, where the serving of a notice period is followed by the payment of an indemnity for the remainder of the notice period is also possible. If the employment contract is terminated with the payment of an indemnity in lieu of notice, no formalities need to be complied with; this is contrary to a termination through serving a notice period.
It is common practice (especially for higher-up employees) that the parties to an employment contract would conclude a separation agreement stipulating, i.e. the amount of the indemnity in lieu and that the employee waives any other claim he may have.
Remedies for Employee Seeking to Challenge Wrongful Termination
Employees can dispute: a) the length of the notice period served; b) the salary package used as a calculation base for the indemnity in lieu of notice; c) the fact that no (timely) motivation of the dismissal was given by the employer, although the employee asked for the reasons for his/her dismissal (indemnity of 2 weeks of salary); d) the reason for dismissal. If the dismissal is deemed unjustified, meaning that it was “manifestly unreasonable”, the employer owes damages for an amount ranging from 3 to 17 weeks of remuneration; e) the dismissal for serious cause. If the claim is successful, the employee will be entitled to an indemnity in lieu of notice equal to the salary for the notice period that should have been served; f) the fact that the employer terminated the employment contract of an employee who enjoys special protection against dismissal, in violation of any rule with regard to the employee’s protected person’s status. If the court rules in favor of the employee, a special protection indemnity ranging from 3 or 6 months (in general) up to even 8 years of salary (maximum amount in case of a dismissal of a member of the Works Council or CPPW) will be due by the employer; and g) whether his/her dismissal was discriminatory. In that case, the employer risks to be sentenced to a supplementary indemnity of 6 months of salary.
Since whistleblowing can involve the processing of personal data, it is subject to the provisions of the GDPR and the Act on the protection of privacy in relation to the processing of personal data. Also, protection must be provided for the whistleblower (against dismissal, discrimination, and harassment) and for the person against whom allegations have been made. The latter must be informed immediately and has the right to access, rectify, or delete the personal data concerning him/her.
Further, the EU approved the Whistleblowing Protection Directive 2019/1937 on 23 October 2019. The Directive is applicable to companies with 50 or more employees and provides protection to a wide scope of persons working in the private or public sector, who have acquired information on breaches in a work-related context, irrespective of whether they are, factually, employees, self-employed, freelance or civil servants. The Directive demands the introduction of an internal reporting procedure to deal with whistleblowing in order to prevent direct leaks to the public or press. In this way, companies would be obliged to confirm the receipt of a complaint within seven days and will have to give feedback to the reporter within three months. Also, external reporting processes to the authorities have to be made clear and easily accessible (by the Member States).
Finally, reporting publicly (to, e.g., the media or online) is addressed as a possibility when the reporters have reasonable grounds to believe that there is an imminent or manifest danger to the public interest or a risk of irreversible damage. Interestingly enough, the Directive offers a protection for whistleblowers against any form of retaliation, including dismissal, negative evaluation, suspension, demotion, discrimination, etc. The main deadline for the implementation of the Directive is 17 December 2021. However, for companies of 50 to 249 employees, the implementation deadline is two years later. At the moment of publication, Belgium has not yet implemented the Directive.