New in 2019: flanders introduces a sanction with regard to outplacement (45 years and +)

Since 1 January 2019, Flanders has its own sanctions rules if the employer fails to meet his obligations under the special outplacement scheme applicable in case of dismissal of an employee aged 45 and older.

This new regulation is part of the 6th state reform by which the regions were given the power to lay down rules on this matter[1]. It applies on condition that the dismissed employee, for whom the employer has not complied with its outplacement obligations, is employed in an establishment unit within the Flemish Region.

THE EMPLOYER IS OBLIGED TO OFFER OUTPLACEMENT

An employer who dismisses an employee aged 45 or over at the time of dismissal must offer him outplacement assistance, provided that the employee simultaneously meets all the following conditions:

• not having been dismissed for serious misconduct;
• not be entitled to a notice period (or corresponding severance payment) of at least 30 weeks[2];
• have at least one year of continuous seniority with the employer at the time of dismissal.

The employer must make this outplacement offer in writing within 15 days after the effective termination of the contract.

WHAT IF THE EMPLOYER DOES NOT OFFER OUTPLACEMENT?

If the employer does not offer outplacement within 15 days, the employee must send him a written notice of default within one month (or 9 months in the case of termination without notice) after the expiry of this period.

If the employer does not respond to this notice of default, the employee, employed in an establishment unit within the Flemish Region, must inform the VDAB (Flemish employment service) of his wish to benefit from outplacement assistance paid the Flemish government.

OUTPLACEMENT PAID BY THE VDAB: HOW DOES IT WORK?

Procedure to be followed by the employee

The employee must send his request to the VDAB within 12 months after the employer's notice of default.

To prove that he meets the conditions for outplacement, he must also enclose the following documents with his application:

• a copy of the letter of dismissal which he has received,
• proof that he has served notice of default on his employer within the applicable time limit.

How does the VDAB proceed?

The VDAB checks whether the employee meets the conditions to benefit from outplacement. The employer is then asked to motivate the reasons why the employee was not eligible for outplacement within one month after the employee's application. The employer has one month to respond to the VDAB's application.

If the employer does not provide sufficient motivation within one month or does not reply within one month, the VDAB must submit the case, together with the motivation (if any) provided by the employer, to the Department of Employment and Social Economy of the Flemish Ministry of Employment and Social Economy (hereinafter referred to as "the Department").

The Department examines the case, decides on it and communicates its decision to the employee, the employer and the VDAB within one month after receipt of the case.

If the department decides that the employee's application is well-founded, the VDAB offers the employee outplacement.

SANCTION TO BE PAID BY THE EMPLOYER

An employer who has not fulfilled his outplacement obligations is required to pay a contribution to the Flemish Region. The amount of this contribution is set at € 1,800 (€ 1,500 + € 300 to cover administrative and financial costs).

Sources: Decree of 9 February 2018 amending the Act of 5 September 2001 to improve the employment rate of employees and the Judicial Code, as regards the imposition of sanctions on employers who fail to comply with their obligations regarding the special outplacement scheme for employees aged at least 45 years, Belgian Official Gazette 27 February 2018; Decree of the Flemish Government of 19 October 2018 determining the amount of and procedure for imposing the contribution referred to in Article 15 of the Act of 5 September 2001 to improve the employment rate of employees, Belgian Official Gazette 22 November 2018.

[1] Until 31 December 2018, the federal regulations were still applicable in the Flemish Region. The employee, towards whom the employer had not fulfilled his outplacement obligations, could benefit from outplacement paid the RVA. The employer in turn owed a contribution of € 1,800, which was collected by the NSSO. Reminder: since 1 January 2016, the Walloon Region and the Brussels-Capital Region also have their own rules in this matter.

[2] An employee who has been dismissed with a notice period (or corresponding severance payment) of at least 30 weeks is entitled to outplacement assistance under the general scheme. Currently there are no sanctions provided for if the employer does not comply with his obligations to offer outplacement under this general scheme.