THE LAW THAT CHANGES

The Act of 3 October 2022 containing various provisions relating to employment (M.B., 10/11/2022, 81963) provides for the possibility of a transitional period in the event of dismissal subject to a period of notice (not in the case of immediate dismissal). In the context of this transitional period, the employee is placed at the disposal of another employer-user during the period of notice to be served.

The conditions and duration of the secondment (maximum the length of the notice period to be served) must be established beforehand in a written document signed by the employer, the worker, the employer-user and the temporary employment agency or the regional public employment service. The law lays down rules for the payment of pay during this period and for the end of the transitional period.

SOCIAL JURISPRUDENCE READ FOR YOU

In a judgment of 27 October 2022 (no. 137/2022), the Constitutional Court ruled on the constitutionality of Article 35 of the Employment Contracts Act of 3 July 1978 insofar as it impedes the right of a worker employed in the private sector to be heard prior to his dismissal for serious reasons.

In its judgments of 6 July 2017 and 22 February 2018, the Court held that section 35 of the Act does not allow a public authority to dismiss a worker without first hearing him or her, since the principle audi alteram partem requires, in the public sector, a prior hearing of statutory and contractual employees. In its judgment of 27 October 2022, it considers that this principle does not apply to relations between persons governed by private law in that it is imposed on public authorities by reason of their special nature and their duties to obtain information before acting and to protect against the risk of arbitrariness in administrative acts of individual scope.

The private sector employer is not obliged to hear the employee whom he dismisses for serious reasons and therefore it is not a fault not to hear before dismissing for serious reasons.

For more information, please contact: Olivier Langlet (olivier.langlet@cew-law.be) and Sophie Poncin (sophie.poncin@cew-law.be), lawyers, CEW & Partners.