New list of workers aged 45 and over to whom the employer does not have to offer outplacement

On 1 December 2018, the list of older workers who are not required to be available for the labour market under the specific outplacement scheme will be adapted. For these workers, the employer is exempted from offering outplacement.

TO WHICH WORKERS DOES THE SPECIFIC OUTPLACEMENT SCHEME APPLY?

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

• not have been dismissed for serious misconduct;
• not be entitled to a notice period (or corresponding severance payment) of at least 30 weeks[1];
• have at least one year of continuous seniority with the employer at the time of dismissal.

TO WHOM THE EMPLOYER IS NOT REQUIRED TO OFFER OUTPLACEMENT?

Unless expressly requested by the worker, the employer is not required to offer outplacement assistance in the following two cases:

• the worker works under an employment system that is on average less than half-time;
• the worker who, if he were to become fully unemployed and be entitled to benefits after the end of the notice period or the period covered by a severance payment, should not be available for the general labour market.

NEW: ADAPTING THE LIST OF PERSONS WHO ARE NOT REQUIRED TO BE AVAILABLE FOR THE LABOUR MARKET

On 1 December 2018, the list of persons who are not required to be available for the general labour market (and to whom the employer does not therefore have to offer spontaneous outplacement assistance) will be adapted. In concrete terms, the following categories of persons whose dismissal is notified as of 1 December 2018 are exempted from the obligation of being available for the labour market:

• a worker who becomes unemployed and receives a company supplement and who is disabled or who has serious physical problems (no earlier than the age 58 with a working life of 35 years);
• a worker who becomes unemployed and receives a company supplement at the age of 60 under collective bargaining agreement no. 17 or at the age of 62 under the general scheme, provided that he has reached the age of 62 or has a working life of 42 years;
• a worker who becomes unemployed and receives a company supplement under the schemes 'night work', 'strenuous profession', 'construction sector', provided that he has reached the age of 62 or has a working life of 40 years;
• a worker who becomes unemployed and receives a company supplement after a very long career, provided that he has reached the age of 62 or has a working life of 40 years;
• a worker who becomes unemployed and receives a company supplement in the context of a recognition of the company as being a company in difficulty or undergoing restructuring, provided that he has reached the age of 62 or has a working life of 40 years;
• a worker who has been dismissed and who has the status of regular unemployed person, provided that he has reached the age of 62 or has a working life of 42 years;
• a worker who has been dismissed by an employer covered by the Joint Committee for regional and urban transport;
• a disabled worker who has been dismissed by an employer belonging to the joint committee (or joint subcommittee) for sheltered workshops, social workshops and adapted work undertakings, with the exception of the support staff, as well as the target group workers who have been dismissed by a social workshop or an adapted work undertaking recognised and/or subsidised by the Flemish Community;
• a worker who is employed in a career advancement programme.

A FEW CLARIFICATIONS

1. The condition regarding age or working life must be fulfilled on the theoretical end date of the notice period or the period covered by the theoretical severance payment.

2. The theoretical period of notice or the period covered by a theoretical severance payment corresponds:

• for non-manual workers, to the notice period or severance payment calculated according to the rules applicable since 1 January 2014, (i.e. depending on whether the non-manual worker's contract started before or after 1 January 2014);
• for manual workers, to the notice period or severance payment calculated according to the rules applicable since 1 January 2014 but in any case as if their contract had started after 31 December 2013 (no application of the click system for manual workers whose contract started before 1 January 2014)

3. When determining the periods of notice, suspensions (if any) of the period of notice or more favourable provisions (if any) laid down in a collective bargaining agreement or individual agreement shall not be taken into account.

 

Source: Royal Decree of 15 October 2018 amending the Royal Decree of 21 October 2007 implementing Article 13, § 3 2°, of the Act of 5 September 2001 improving the employment rate of workers and determining the date of entry into force of Articles 7 and 9 of the Act of 17 May 2007 implementing the interprofessional agreement for the period 2007-2008, Belgian Official Gazette of 29 October 2018.

[1] A worker who has been dismissed with a notice period (or corresponding severance payment) of at least 30 weeks is entitled to outplacement under the general scheme.