Reduced notice clause of 7 days for manual workers: what does the Court of Cassation say?

The Court of Cassation recently ruled on the question whether the contractual clauses of reduced notice (of at least 7 days) must be included in the ‘click system’ in case of dismissal of a manual worker with less than 6 months of uninterrupted service on 31 December 2013.

The position of the Court of Cassation in this respect contradicts the position adopted by the FPS Employment and the ONEm/RVA, according to which this reduced notice period must be taken into account when determining the first part of the notice period.

What is the click system?

As a reminder, since the unified status came into force on 1 January 2014, the notice periods for employees of whom the performance of the contract begins as from 1 January 2014 are identical for manual and non-manual workers. They are expressed in weeks on the basis of seniority alone.

For employees of whom the performance of the contract began before 1 January 2014, the notice periods are calculated by applying the ‘click system’. This is a 3-step calculation:

• Step 1: determination of the notice period on the basis of the seniority built up until 31 December 2013 according to the statutory, regulatory and contractual rules in force on 31 December 2013;
• Step 2: determination of the notice period on the basis of the seniority built up as from 1 January 2014 according to the rules applicable since 1 January 2014 (notice period in weeks).
• Step 3: sum of these two periods.

Contractual clause of reduced notice for manual workers: what is it?

Prior to the entry into force of the unified statute, it was possible to insert a reduced notice clause for manual workers in the employment contract or work regulations, derogating from the often longer ‘ordinary’ legal or sectoral notices. This contractual clause of reduced notice could provide that in case of dismissal of a manual worker with less than six months of uninterrupted service, a reduced notice period of (at least) 7 days could be given. In the case of resignation, the period of notice could not exceed half the period agreed upon for the notice given by the employer.

What if the manual worker has less than 6 months of service on 31 December 2013?

In the event of the termination of a contract as from 1 January 2014 of a manual worker whose performance of the contract began before 1 January 2014 and who has less than 6 months of uninterrupted service on 31 December 2013, should the reduced contractual notice of 7 days (in the event of dismissal) or the ‘ordinary’ (legal or sectoral) notice be applied when determining the period of notice on 31 December 2013 (1st part)? In other words, what period must be ‘clicked’?

Position of the FPS Employment and the ONEm/RVA

The position adopted by the FPS Employment, Labour and Social Dialogue and the ONEm/RVA is to take into account the reduced contractual notice, i.e. 7 days.

Position of the Court of Cassation

The Court of Cassation decided otherwise in a judgment of 12 April 2021.

After 31 December 2013, the employment contract may still be terminated in accordance with a contractual clause of reduced notice if the dismissal occurs before the employee has acquired 6 months of uninterrupted service in the company. As since 1 January 2014, it is no longer allowed to provide for such clauses, it is therefore no longer possible to use them.

If a manual worker with less than 6 months of uninterrupted service on 31 December 2013 is dismissed after 6 months of interrupted service, the employer must take into account the ‘ordinary’ (legal or sectoral) notice periods applicable on 31 December 2013 when determining the first part of the notice period (and not the reduced contractual notice period of 7 days).

It is likely that the FPS Employment, Labour and Social Dialogue and the ONEm/RVA will adapt their position in accordance with the judgment of the Court of Cassation.

Source: Court of Cassation judgment of 12 April 2021 (S.20.0022.N).