Be Aware March 2023

An employment contract with a fixed end date: The best of both worlds?

Employment contracts are traditionally categorised in two ways: employment contracts of undefined duration and fixed-term employment contracts. But some case law holds that there’s a third category. These are employment contracts of undefined duration. But they include a clause stating that the contract will automatically end, without any termination indemnity being due, if the contract is still in force at a given date. This little-known and rarely used third category of contact is interesting, as it combines some benefits of a contract of undefined duration with some benefits of a fixed-term contract.

The main benefit of a fixed-term contract is that no termination indemnity is due when the contract ends.

A fixed-term contract also has a number of disadvantages.

A fixed-term contract cannot be terminated by respecting a notice period. This rule is now subject to an exception for the first half of the fixed-term contract, but with an absolute maximum of six months. This possibility of terminating a fixed-term contract by respecting a notice period only applies to the first fixed-term contract if the parties enter into consecutive fixed-term contracts.

Secondly, when terminating a fixed-term contract before its end date, the indemnity in lieu of notice equals the remuneration for the remaining part of the contract but capped at twice the indemnity in lieu of notice that would be due if the contract had been an employment contract of undefined duration. So terminating a fixed-term contract can cost far more than terminating an employment contract of undefined duration with the same start date.

In a judgement of 6 April 1998, the Supreme Court held that the parties can agree that their employment contract will automatically end on a given date, without any termination indemnity being due, if the employment contract is still in force on that date. This employment contract is then considered to be an employment contract of undefined duration, so it can be terminated under the rules for employment contract of undefined duration in case of a termination before the agreed end date.

The Employment Appeal Tribunal of Liège applied this notion in its judgement of 28 November 2022. The case concerned a worker who signed consecutive contracts. The last contract stated that the employment contract would automatically end on 31 December 2019, when the employer was planning a move to new premises. When the contract ended on 31 December 2019, the worker claimed an indemnity in lieu of notice.

The Employment Appeal Tribunal considered this claim to be unfounded, as the parties could validly sign an employment contract of undefined duration with a fixed end date. As the employment contract was considered to be an employment contract of undefined duration, the restrictions on signing consecutive fixed-term contracts were not considered to be applicable.

Both the Supreme Court judgement of 6 April 1998 and the judgement of the Employment Appeal Tribunal reminded that a contractual end date would be invalid if it implied that the workers would renounce their rights in case of a termination by the employer other than at the agreed end date.

 

What are the current rules for medical certificates in Belgium?

There’s recently been some debate about whether employees need to submit a medical certificate from a doctor for a short period of sick leave. Back in autumn 2021, the Belgian government announced plans to (partially) abolish the need for a medical certificate for short-term sick leave. The professional organisations of doctors called for a similar change, to avoid the workload resulting from patients consulting a doctor mainly to get a certificate.

The legislative change was introduced through the Act of 30 October 2022 with various provisions in relation to disability, which made the topic rather complex.

If an employee can’t work because of illness or an accident, they should first inform their employer as soon as possible. The law does not regulate how this should be done. An email is preferable over a telephone call for evidence reasons.

A doctor’s certificate is only needed when the obligation to provide one is stipulated in a collective bargaining agreement or in the work regulations, or if the employer asks for one. The legislation does not stipulate how the employer should send the request.

When a medical certificate is needed, the employee should send it to the employer within two working days from the start of the period of absence. A collective bargaining agreement or the work regulations can stipulate a difference deadline. The two working day rule relates to the moment the certificate is sent, not the moment the employer should receive it.

The law now says that no medical certificate is needed for the first three periods of sick leave per calendar year that last only one working day. So nothing’s changed if the sick leave lasts two working days or longer. In that case, a medical certificate is necessary if required by a collective bargaining agreement or the work regulations, or if the employer asks for one.

Organisations with less than 50 workers can, in a collective bargaining agreement or their work regulations, deviate from this rule and require a medical certificate for these first three cases of sick leave lasting only one day. The 1978 Act on Employment Contracts uses the term “organisations,” so there are good arguments that the 50 worker threshold should be assessed at the level of the technical operating unit, and not for each company separately.

The Federal Public Service of Employment, Labour and Social Dialogue takes the view that deviating from the general rule that a medical certificate is no longer necessary for the first three cases of sick leave lasting only one day, requires an active deviation by either signing a collective bargaining agreement or by amending the work regulations. A certificate would also be needed if the current work regulations stipulate one is needed in all cases of sick leave because the work regulations predate the Act of 30 October 2022. These employers should – according to the Federal Public Service of Employment – follow the procedure for amending the work regulations (requiring consent of the works council or a staff consultation process), even if the text of the new and the current work regulations would be exactly the same.

The 1978 Act on Employment Contracts does not stipulate a prohibition on medical certificates with retroactive effect. These will probably become more frequent, as an employee could, on the first day of sick leave, hope to have recovered so they can go back to work the next day (so they wouldn’t need a certificate), and only consult a doctor on the second day, when it becomes clear a medical certificate is required.

Nothing has changed in the rules concerning the right of the employer to send a controlling doctor. Also if the sick leave is scheduled to last only one day, and the worker does not need to provide a medical certificate, the employer has the right to send a controlling doctor.