Succession of contracts of definite duration and replacement contracts: be careful!

Where there is a succession of fixed-term contracts and replacement contracts, the rules relating to contracts of indefinite duration must, according to the Constitutional Court, be applied to the employee concerned.

What does legislation say?

Successive employment contracts of definite duration

In principle, a succession of employment contracts of definite duration is prohibited; in such cases, the employer and the employee are deemed to have concluded an employment contract for an indefinite duration (art. 10 of the Act of 3 July 1978 on employment contracts).

Successive contracts of definite duration are nevertheless allowed in certain circumstances. This is particularly the case when the following conditions are met:

• maximum number of contracts of definite duration: 4;
• duration of each contract: at least 3 months;
• total duration of the successive contracts of definite duration: 2 years maximum.

Successive replacement contracts

The conclusion of successive replacement employment contracts between the same parties is not prohibited.

However, where the parties have concluded several successive replacement contracts, without there being an interruption between them attributable to the employee, the total duration of such successive contracts may not exceed 2 years.

If the two-year period is exceeded, the contract is subject to the same conditions as contracts concluded for an indefinite duration (Art. 11ter, § 1, par. 5 of the Act of 3 July 1978).

What does the Constitutional Court say?

Following a preliminary question submitted by the Labour Court of Ghent, the Constitutional Court rendered a judgment on 17 June 2021 concerning the hypothesis of a succession of contracts of definite duration and replacement contracts concluded between the same parties.

The facts submitted to the Labour Court of Ghent were as follows: an employee had been employed for more than 16 years by the same employer under a succession of various replacement contracts and contracts of definite duration.

In practice, neither the duration of successive contracts of definite duration, nor the duration of successive replacement contracts exceeded 2 years; on the other hand, the total duration of the succession of these contracts exceeded 2 years.  

In this type of situation, the stability of employment enjoyed by the employee (after a period of 2 years in principle) on the basis of Article 10 or on the basis of Article 11ter, § 1, par. 5 of the Act of 3 July 1978, depending on whether he is employed under successive contracts of definite duration or under successive replacement contracts, does not apply.

For the Constitutional Court, the non-application of these provisions when there is a succession of contracts of definite duration and replacement contracts violates the Constitution; it considers that, in this case, the rules relating to contracts of indefinite duration should be applied to the employee concerned.

So be careful.

Source: Const. Court, 17 June 2021, No. 93/2021, www.const-court.be.