Be Aware – June 2025

Notice period for workers already in service on 31 December 2013

Up to 31 December 2013, the notice period (or the period covered by the indemnity in lieu of notice) was completely different for blue-collar and for white-collar workers. The notice period for blue-collar workers was far shorter compared to that for white-collar workers.

But only blue-collar workers could – under article 63 of the 1978 Act on Employment Contracts – claim an indemnity of six months’ remuneration in the case of abusive dismissal.  This is defined as a dismissal not based on the conduct of the blue-collar worker or the organisational requirements of the employer.

In a judgement of 7 July 2011, the Constitutional Court ordered the government to harmonise the notice periods by 8 July 2013. After lengthy discussions, the harmonisation was only introduced by means of an Act of 26 December 2013, which entered into force on 1 January 2014. The main characteristic of the Act is that the new, harmonised notice periods only apply for service years as of 2014. For service years up to 2013 (included), the existing legislation stipulating different notice periods for blue-collar and white-collar workers is still in principle applicable.

Although this Act has now been in force for more than a decade, there is still a considerable number of cases where Employment Tribunals have to clarify how the Act should be construed, for instance a judgement rendered by the Employment Appeal Tribunal of Brussels on 13 December 2024 and one by the Employment Tribunal of Gent on 12 December 2023.

The case in Brussels concerned a blue-collar worker who entered into service in 2007. In 2010, he became a white-collar worker. He was dismissed in 2018.

The parties agreed the new, harmonised, notice periods should be applied for service as of 2014 up to 2018. The employer argued that for service years from 2007 up to 2009, the notice period should be calculated under the rules for blue-collar workers and for service from 2010 up to 2013 (included) under the rules for white-collar workers.

The Employment Appeal Tribunal argued 31 December 2013 is the reference point under the Act of 26 December 2013. The legislator’s compromise was that new, harmonised notice periods would apply as of 2014, whereas the old, different notice periods continue to apply for service years up to 2013. On 31 December 2013, the worker was a white-collar worker, so the notice period for service years from 2007 up to 2013 should be calculated under the rules for white-collar workers, which is in principle one month’s notice per started year of service (with a minimum of three months).

The judgement by the Employment Tribunal of Gent concerned a similar case. A blue-collar worker entered into service in 1997 and became a white-collar worker in 2018. The dismissal took place in 2022.

The Employment Tribunal pointed out the Act of 26 December 2013 stipulates the transition measures only apply to “workers whose employment contract started before 1 January 2014”, which is according to the Employment Tribunal not necessarily the same as “workers whose period of continuous employment started before 1 January 2014.” The parties had signed a new employment contract with completely new terms of employment in 2018, when the worker moved to a white-collar role. So the transition measures didn’t apply according to the Employment Tribunal. The notice period for the complete period since 1997 had, according to the Employment Contract, to be determined under the new, harmonised notice periods introduced by the Act of 26 December 2013.

There is diverging case law if the parties agreed on a conventional period of continuous employment going back before 2014. Some case law holds one should only apply the new, harmonised notice periods introduced by the Act of 26 December 2013, whereas other case law states that one should apply the transition measures, so using the legislation existing on 31 December 2013 for service years up to 2013. When agreeing on a conventional period of continuous employment going back before 2014, the parties should ideally sign a clause clearly stipulating which they agree on.

 

Sick leave in Belgium: The reintegration procedure and the duty to foresee reasonable adjustments for employees with disabilities

If an employee is on long term sick leave, either the employee or the employer can start the reintegration procedure stipulated in the Code on Wellbeing at Work (the employer only if the sick leave lasts at least three months).

The employer also has a separate obligation. Under the Act of 10 May 2007 combatting certain forms of discrimination, the employer has to foresee reasonable adjustments for employees with disabilities. Although it concerns separate legal obligations, a judgement from the Employment Appeal Tribunal of Brussels on 17 March 2025 illustrates that both obligations are linked.

The case concerned a factory worker who had an accident at work in March 2019. In October 2019, the employer started the reintegration procedure stipulated in the Code on Wellbeing at Work. As part of the procedure, the occupational health doctor performed a medical examination and concluded the employee was definitively unable to perform his previous role. The doctor added the employee was medically able to perform adjusted work, subject to certain conditions, notably not having to repeatedly lift heavy goods. In January 2020, a meeting took place where the possibility to become a truck driver or to switch to administrative work was discussed. The employer failed to take a decision and replied only by February 2021 that no other work was available, without clearly explaining the decision.

The first step in assessing the compliance with the duty to provide reasonable adjustments for employees with disabilities is to assess whether the worker involved is disabled. The Employment Appeal Tribunal takes its definition from the case law of the European Court of Justice. The definition of disability is “a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. There is no fixed period required for becoming a “long-term” limitation, so this is an overall assessment taking into account all elements of the case. In the case at hand, the employee had already been unable to perform heavy physical work for two years and there were no realistic expectations for recovery, so this was considered a disability.

When an employee with a disability requests reasonable adjustments, the employer can refuse them in a number of cases, notably when they would involve a disproportional burden for the employer. But the employer bears the full burden of proof for establishing the disproportional burden. This is a stricter requirement for the employer compared to the shared burden of proof under discrimination law in general, where the burden of proof only shifts to the employer if the employee can establish facts suggesting there is an infringement of discrimination law.

The Employment Appeal Tribunal concluded the employer failed this burden of proof in two aspects. The employee was unable to perform functions requiring the frequent lifting of heavy goods, but there were also a small number of blue-collar roles not requiring any lifting of heavy goods. The employer couldn’t submit evidence confirming why a transfer to these roles was impossible (for instance evidence confirming the absence of any open vacancies in those functions). The employer also merely assumed the (blue-collar) employee wasn’t suited to all white-collar functions but couldn’t provide evidence confirming this (eg negative results in the tests normally used when recruiting white-collar employees). The Employment Appeal Tribunal granted the lump sum indemnity of six months’ remuneration stipulated in the 2007 Discrimination Act.

The employee also claimed an indemnity for infringement of the reintegration procedure stipulated in the Code on Wellbeing at Work. This procedure also requires examining in good faith whether an employee who is medically unfit to fulfil the contractual function can perhaps be kept in service by adjusting the place of work or by offering an alternative role. Under this procedure, an employer can refuse if the measures proposed by the worker are technically or objectively impossible, or when there are good reasons why the employer can reasonably not be expected to implement the requested measures.

The Employment Appeal Tribunal concluded the employer couldn’t genuinely establish in sufficient detail having examined whether a transfer was feasible.

The Code on Wellbeing at Work doesn’t stipulate a lump-sum indemnity a worker is entitled to if the employer fails to correctly follow the reintegration indemnity. The Employment Appeal Tribunal therefore only granted a symbolic amount of EUR1.