2020 social elections: period of hidden protection

Author: Catherine Mairy
Date:

Social elections will take place between 11 May and 24 May 2020 for the purpose of electing employee representatives within a works council (WC) and/or a committee for prevention and protection at work (CPPW).

Staff representatives (both full and alternate) to the works council and/or the committee for prevention and protection at work, as well as non-elected candidate staff representatives are protected against dismissal pursuant to the Act of 19 March 1991 (Act on a special system of dismissal for staff representatives to the works council and the committee for prevention and protection at work, as well as for candidate staff representatives).

There is a time limit to this special protection against dismissal, however.

Start of the period of protection against dismissal

Regardless of whether or not the candidate has been elected and regardless of the protected category, the protection against dismissal starts on the thirtieth day prior to the posting of the notice announcing the date of the elections (X – 30), i.e. between 12 and 25 January 2020.

However, it is only 35 days (at the latest) after such date (X + 35), i.e. between 17 and 30 March 2020, that the lists of candidates are formally presented to the employer.

There is therefore a period of ‘hidden protection’ (from X – 30 to X + 35).

Please note!

  • Given that the lists of candidates are not final on day X + 35, the period of hidden protection may be longer.
  • An employee who is dismissed between X – 30 and (in principle) X + 35 (with or without notice, with or without severance payment) in violation of the provisions of the Act of 19 March 1991 may be presented as a candidate provided that they meet the conditions for eligibility at the date of dismissal.
  • Where the employee who is protected pursuant to his registration on the lists of candidates is dismissed during the period of hidden protection (from X – 30 to, in principle, X + 35), he is required to request his reinstatement within a period of 30 days following the day of the presentation of the applications. Failing such request, no severance payment shall be due to him. If the employer refuses his reinstatement, he shall be required to pay a protective award to the protected employee.

End of the period of protection against dismissal

Full or alternate staff representatives

The period of protection against dismissal enjoyed by the (full or alternate) staff representative to the works council and/or the committee for prevention and protection at work shall end on the date of appointment of the candidates elected to the works council and/or the committee for prevention and protection at work during the following elections, provided that the staff representative is not represented.

Non-elected candidates on their first unsuccessful candidacy

The period of protection against dismissal enjoyed by non-elected candidates in the first candidacy for the works council and/or the committee for prevention and protection at work shall end on the date of appointment of the candidates elected to the works council and/or the committee for prevention and protection at work during the next social elections.

Non-elected candidates on their second unsuccessful candidacy

The period of protection against dismissal enjoyed by candidates on their second unsuccessful candidacy for the works council and/or the committee for prevention and protection at work shall end, in principle, 2 years after the posting of the results of the social elections.  

Please note! The protection to which are entitled (candidate) staff representatives shall end at such time as they reach the age of 65, except if it is standard practice within the company to maintain the category of employees to which they belong in service.

Content of the protection against dismissal

During the period of protection, the employees elected as (full or alternate) staff representatives to the works council and/or the committee for prevention and protection at work and employees who are non-elected candidate staff representatives may only be dismissed for serious reasons previously accepted by the Labour Court or for economic or technical reasons previously recognized as such by the Joint Committee.

If this is not the case, the employer will have to pay a protective award.

Sources: Act of 19 March 1991 on a special system of dismissal for staff representatives to the works council and the committee for prevention and protection at work, as well as for candidate staff representatives; Cass., 30 March 1992, J.T.T., 1992, p. 483.