Be Aware – October 2023

Social elections: When are candidates protected against dismissal?

Staff representatives in the works council and the committee for prevention and protection at work are elected every four years in social elections. The next social elections will take place between 13 and 26 May 2024, on a date during this period chosen by the employer.

The candidates in the social elections benefit from specific protection against dismissal governed by the Act of 19 March 1991 holding a specific regime of dismissal for the staff representatives in the works council and the committees for prevention and protection at work. But it’s sometimes impossible for an employer to know who is covered by this protection.

The protection against dismissal for candidates in the 2024 social elections becomes applicable as of X – 30 in the terminology of the social elections, which is between 14 and 27 January 2024.

The trade unions should only submit their list with candidates on X + 35, which is between 19 March and 1 April 2024. The protection against dismissal has a retroactive effect of 65 days. The protection only applies to the candidates on the final list submitted by the trade union in question. So if a trade union submits a list with candidates before the deadline, workers not on that list can still be covered by the Act of 19 March 1991 if the trade union submits a new list of candidates by the deadline of X + 35 and the worker is on that list.

Even when having received the final list of candidates at X + 35, an employer can still not know with 100% certainty who is covered by the Act of 19 March 1991. The trade unions can replace candidates up to X + 54, which is between 7 April and 20 April 2024. This is only subject to the condition the replaced worker was in service on X - 30. The trade unions can’t obtain an extra period for recruiting candidates on X + 35 by submitting a list of candidates including fictious names and replace these fictitious candidates with a genuine candidate by at the latest X + 54.

The trade unions even have up to X + 76, which is between 29 April and 12 May 2024, to replace a candidate in case of death, a resignation (either a resignation from the company or a resignation of trade union membership) or when a candidate becomes part of a different category (for instance a blue-collar worker switching to a white-collar function). Only at X + 77, will the employer know with 100 % certainty who is covered by the specific protection against dismissal.

Under the Act of 19 March 1991, a dismissed worker in principle has the choice between claiming only the fixed part of the protection indemnity, or claiming reintegration within 30 days. If the employer accepts this reintegration, no termination indemnity is due, only the pay for the period between the dismissal and the reintegration. If the employer refuses this request for reintegration (or doesn’t make a decision within 30 days), the dismissed worker is not only entitled to the fixed part of the protection indemnity, but also the variable part.

If the dismissal happens before the trade unions submit their list of candidates, the worker is only entitled to an indemnity under the Act of 19 March 1991 when having requested reinstatement but the employer did not accept the reinstatement. If a dismissed worker turns out to be a candidate, an employer could still decide to accept the request for reinstatement, but either follow the procedure under the legislation concerning the social elections for contesting the validity of the candidacy (arguing it would be abusive), or applying for the authorisation by the joint committee for proceeding to a dismissal for economic or organisational reasons.

The fixed part of the protection indemnity is:

• two years’ pay if the worker has been employed continuously for less than ten years;
• three years’ pay if the worker has been employed continuously for between 10 and 20 years; and
• four years’ remuneration if the worker has been employed continuously for at least 20 years.

The variable part of the protection indemnity is pay up to the next social elections. For candidates in the May 2024 social elections, this is the pay for the period up to May 2028.

The specific protection against dismissal applies in principle for the full four-year period up to the next social elections. Only if a candidate is not elected for a second time, the protection only applies for a two-year period. There is no condition that this would concern consecutive social elections. A worker who was an unelected candidate in the 2016 social elections, who was elected in the 2020 social elections and is again an unelected candidate in the 2024 social elections, will only be covered by the protection against dismissal for a two-year period.

 

European law only partially saves an employer using a different language

Belgium has very specific legislation on the use of languages in employment matters. For staff linked to a place of business in the Dutch-speaking part of Belgium, using Dutch is mandatory in all written and verbal communication between the employer and the employee. Similarly, using French is required for all communication with staff members linked to a place of business in the French-speaking part of Belgium. For staff linked to a place of business in the Brussels region, using Dutch is required for Dutch-speaking workers and French for French-speaking workers (the legislation assumes all workers in Brussels speak either Dutch or French).

The consequences of using a different language can be drastic. The legislation applicable in both the Dutch-speaking and the French-speaking parts of Belgium stipulate the employer cannot invoke a document that’s written in a different language. The employee can invoke the document against the employer. The employee can even cherry-pick from the document, for instance by invoking the good points within an evaluation form drafted in English, but adding the employer is not entitled to invoke the negative points of the evaluation mentioned in the same form. Rewriting the document in the correct language does not have retroactive effect. And when it comes to contracts, the employee has to sign them.

In the Brussels region, the issue is of limited importance, as the only sanction is that the worker has the right to ask for a translation at the expense of the employer. This translation does have retroactive effect to the date the initial document was drafted, and the employee doesn’t have to sign it.

On 16 April 2013, the European Court of Justice held in its judgement C-202/11 that Belgian law was contrary to the freedom of movement for workers under European law. The court said it might deter foreign employees from working in Belgium if their employer had to use a language the employee does not (fully) understand. The Belgian legislation on the use of languages does not take into account whether or not the employee understands the required language. So Dutch is required if an employee is based in the Dutch speaking part of Belgium, even if this employee does not understand Dutch. While an employer is free to add a translation, only health and safety law stipulates a legal obligation to provide workers with safety instructions in a language the worker understands.

The European Court of Justice followed a similar reasoning in its judgment C-15/15 of 21 June 2016 concerning the free movement of goods. The issue at stake in that case was the requirement that companies based in the Dutch-speaking part of Belgium issue their invoices in Dutch.

Despite these judgements by the European Court of Justice, the Belgian legislation on the use of languages in employment matters is still the same, as confirmed by the Belgian Supreme Court in a judgement of 7 September 2023. It is a principle of European law that if a national legislation is considered to be void due to it being contrary to European law, this nullity only applies in cases covered by European law, hence cases with an international aspect. When it comes to purely domestic files, European law doesn’t apply. The arguments based on European law do not apply to purely internal situations.

The case of 7 September 2023 concerned a dispute between two people based in the Dutch-speaking part of Belgium, not involving any international aspect. The Supreme Court considered that documents written in English were void.

Employers should make sure all contracts signed with employees are written in the required language, with a translation being added if appropriate, so there’s no room for any debate on contracts becoming unenforceable because of a violation of the legislation on the use of languages in employment matters.