Clauses of notice period for “higher” employees in service before 2014: no more doubt regarding their application

If, at the moment of the recruitment of your higher employees dating from before 1st January 2014, you had concluded a clause defining the duration of their notice period in case of dismissal, it is from now on the duration defined by this clause that will apply at the moment of the calculation of the first part of their notice period.

Update: this draft law was published on 23 November 2023. The information discussed in this Infoflash remains unchanged.

What changes?

The law on unified status, which defines the notice period in case of dismissal of your employees entered into service before 1st January 2014, has just been modified by a draft law adopted by the Chamber.

On the base of this draft law, if, at the moment of hiring your higher employee (that is to say an employee whose remuneration is higher than 64,508 EUR (in 2013) at the moment of his/her entering into service) before 1st January 2014, you had concluded a clause defining the duration of the notice period to be respected in case of dismissal, it will now be the duration defined in this clause that will apply for the calculation of the first part of the notice period.

What are we talking about ?

In case of dismissal of employees whose contract has started before 1st January 2014, the law regarding unified status provides that the notice period is calculated by adding up 2 periods: a first part for the seniority built up until 31 December 2013, and a second part for the seniority built up as from 1st January 2014.

In case of dismissal of employees whom, on 31st December 2013, had an annual remuneration higher than 32,254 EUR, the duration of the first part is equivalent to 1 month per started year of service, with a minimum of 3 months.

Until 31st December 2013, you had the possibility, at the moment of hiring your higher employee and with his agreement, to add a clause defining a derogating notice period applicable in case of dismissal.

Following to the coming into force of the law on unified status, the question was to know if, in case of dismissal as from 2014, the notice provided for in that clause would apply automatically, or only if it was more favourable than the system put into place by the law on unified status (it is to say 1 month per started year of service with a minimum of 3 months).

For the Constitutional Court (judgements of 2018 and 2019), a clause validly concluded before 1st January 2014 must be applied.

However, this point had never been legally confirmed.

The draft law adopted by the Chamber no longer leaves room for doubt.

What is the impact for me?

If, at the moment of the hiring before 1st January 2014, you had concluded a valid clause defining the duration of your higher employee’s notice period in case of dismissal, it is said period that must be applied for the calculation of the first part of the notice period.

With regard to the second part of the calculation of the notice period, nothing changes: the notice periods in force since 1st January 2014 remain applicable.

When?

This modification has entered into force on 28 October 2023.

Before dismissing your higher employee, check if such a clause is included in his/her working agreement.

Source: Law of 5 November 2023 containing various work-related provisions, Belgian Official Gazette of 23.11.2023.