The probationary period, which was abolished at the end of 2013, has been reinstated. The law amending Article 37/2 of the July 3, 1978 Act on employment contracts regarding notice periods when an employee has less than six months of seniority was adopted on May 21.
One week’s notice during the first 6 months – note the transitional provisions
In accordance with the government agreement, the reform reintroduces a form of probationary period allowing both parties to terminate the contract with one week’s notice during the first 6 months. The law will take effect on the first day of the month following its publication in the Belgian Official Gazette and will apply only to employment contracts whose performance, as agreed between the employer and the employee, begins on or after the effective date of this law.
A written agreement is not required—only the rules regarding notice periods have been amended
Prior to the 2013 reform, the probationary clause had to be set forth in writing for each employee individually no later than the date of their employment, or else it would be null and void. As noted, the legislature is not reinstating the probationary clause. Only the length of the notice period is being changed. The notice period is being reduced from one week (less than 3 months of service), three weeks (3 to 4 months), and four weeks (4 to 5 months) or five weeks (5 to 6 months) to one week for employees with less than 6 months of service when the notice is given by the employer.
In the event of the employee’s resignation, the notice period is also reduced to one week during the first 6 months.
Finally, in the event of a counter-notice given by an employee who has been terminated by the employer with notice, this notice period will also be one week for employees with less than 6 months of seniority. Giving a one-week counter-notice when a one-week notice period is already in effect is obviously of little benefit.
Calculating the 6-month probationary period: An oversight that can be costly
Under the rule in effect prior to 2013, if an employment contract was terminated with a shortened notice period, that period had to expire during the time covered by the probationary clause. If it expired after this period, the employer risked having to pay additional notice pay. This requirement is not included in the new provisions, but it is worth noting that notice periods are calculated based on the length of service accrued at the time the notice period begins. Therefore, do not forget that employers and employees must follow formal procedures when giving notice, particularly if they choose to send it by certified mail (the notice takes effect on the third business day following the mailing of the certified letter) and that the notice period begins on the first Monday following its notification. The consequences are significant, since beyond six months of seniority, in addition to the risk of having to pay additional notice pay, Collective Bargaining Agreement No. 109 of February 12, 2014, regarding the justification for dismissal, will apply to negligent employers.
Regarding a few specific questions raised during the discussions
The minister clarified that periods of temporary work are included in the calculation of seniority if the break between contracts does not exceed seven days. In the event of illness during the notice period given by the employer, he specifies that the period is suspended and the contract end date is postponed, but the one-week duration remains fixed; finally, he dismisses the criticisms raised by the Council of State regarding the standstill principle - or the principle of non-regression of acquired social rights - by emphasizing that the measure is justified by the public interest (job creation) and that it brings Belgium into line with its neighbors.
By Frédéric Robert: Partner - Advocaat vennoot - CLAES • LEHMANN • MILDE
See also : When a manager or employee leaves: anticipating risks and safeguarding the business