Payroll & HR Insights | October 2022 | Possible consequences of the new civil code for labour law

For several years now, the legislator has been working on a thorough reform of the Civil Code. We now know the direction taken and the changes made to this fundamental piece of legislation. It appears that the new legislation will also have an impact on labour relations.

DISMISSAL: CHANGE IN THE NOTICE PERIOD AND DISMISSAL FOR SERIOUS cause

When an employer wishes to dismiss an employee with notice, he is legally obliged to notify the employee in question by registered letter or bailiff's writ. In practice, in most cases, the notification is sent by registered mail.

Moreover, the date of sending of the registered letter also affects the notice period. The new Civil Code has brought about an important change that should be taken into account in this respect.

CURRENT SITUATION

Dismissal with notice period

The legal rules on dismissal stipulate that the notice period only starts on the Monday of the week following the week in which the notice was served. In case of notification by registered letter, the notification only takes effect on the third working day following the date of sending.
Since Saturday is a working day, this means that the employer has to send the registered letter notifying the dismissal by Wednesday at the latest if he wants the notice period to start on the Monday of the following week. However, as of next year, this will no longer be the case.

Dismissal for serious cause

When an employer wishes to terminate an employment contract immediately for serious cause, he must deliver certain formalities within specific time limits. First, he must notify the termination as such of the employment contract within an initial period of 3 working days starting from the day after the employer becomes aware of the facts constituting the serious cause.  This notification does not have to be in writing, although this is strongly recommended.

In a second time, the employer must inform the employee of the serious reason on the basis of which the dismissal took place, also within a period of 3 working days starting the day after the day on which the termination of the contract took place. This second notification must be made either by handing over a written document (the signature on the duplicate of this document being deemed to be an acknowledgement of receipt), or by sending a registered letter, or by a bailiff's writ.

AS OF 1 JANUARY 2023

The new provisions of the Civil Code include a change about the days of the week that are to be considered as working days for the calculation of time limits. Currently, with the exception of Sundays and public holidays, all other days are considered working days.
However, as of 1 January 2023, Saturdays will no longer be considered working days.

CONSEQUENCES FOR THE NOTIFICATION OF THE NOTICE PERIOD

Notification of the notice period

This change in the law has direct consequences for the notification of a notice period by registered letter. Employers who wish to have the notice period start as soon as possible now must send their registered letter by Tuesday at the latest.

However, as already mentioned, the employer can also serve the notice period by means of a bailiff's writ. Although this solution is more expensive, it allows the employer to dismiss the employee later in the week and still have the notice period start on the Monday of the following week. In this case, the notice takes effect immediately upon delivery of the writ by the appointed bailiff.

Notifications in the context of dismissal on serious grounds

This new feature of the Civil Code will also have potential consequences in the event of dismissal for serious misconduct. For example, if the serious reason for immediate termination of the contract is brought to the employer's attention on Wednesday, it will be possible to notify the termination of the contract by the following Monday at the latest (if this is not a public holiday)

Caveats

The impact of these changes to the Civil Code on labour law is not yet unanimous.  Indeed, it would seem that the consequences of these changes have not really been measured, particularly in terms of labour law.

Moreover, the government has reportedly called on the social partners to give an opinion on the issue, given that the Civil Code also provides for the possibility of derogating from this rule.

DIGITAL WRITINGS: E-MAILS, SMS, ETC.

Current situation

Although e-mails are used daily in case law as evidence, until now there was no legal basis for the validity of such evidence. The new Civil Code is intended to fill this gap.

From 1 January 2023

The new provisions of the Civil Code recognise electronic notification (e.g. by e-mail) as a valid means of communication under the law. However, certain precautions must be taken.

Indeed, the recipient will have to agree beforehand to be informed in this way. This acceptance may be contractual or may arise from usage.  For example, if electronic communications in the same context have already taken place in the past, this could constitute acceptance.

On the other hand, if it can be inferred from a reply or acknowledgement that the e-mail has been read, then it can be concluded that the notification has been validly given.

Consequences in the employment relationship

These provisions anchor the position of electronic exchanges as a means of evidence and notification. Provided that certain provisions are made in terms of acceptance, such as a provision in the employment contract, electronic exchanges between employer and employee will constitute a means of communication with definite weight in the eyes of the courts in the event of a dispute.

WHAT CAN RSM DO FOR YOU?

In order to ensure that you do not miss any legal obligation, RSM can assist and advise you on the steps to be taken in the context of a dismissal, in particular with regard to the drafting of various documents, such as the letters concerning the notification and/or the reason for the dismissal or the agreement to terminate the employment relationship by mutual consent, if applicable.

As part of the Payroll and HR solutions that we offer to our clients, HR aspects such as described in this Insight are taken care of on behalf of our clients.

If you have any questions regarding the above matters, please do not hesitate to contact the RSM Belgium Tax InterPay team ([email protected]).

How can we help you?

Contact us by phone +32 (0)2 379 34 70 or submit your questions, comments, or proposal requests.

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