As an employer in Belgium you in principle have the right to terminate an employment contract. That right is broad, but not unlimited. The real legal points of attention often do not lie in the decision whether you may dismiss, but in the way you prepare, motivate and implement that decision. That is precisely where the greatest risks arise in practice.
A severance indemnity is more than the gross salary alone
When an employment contract is terminated immediately with payment of a severance indemnity in lieu of notice, the assessment is not limited to the fixed gross salary. Benefits that the employee has acquired on the basis of the employment contract can also form part of the calculation basis.
Think, for example, of certain structural bonuses or other contractually acquired benefits. In the case of wholly or partly variable pay, account is moreover taken of the average of the variable remuneration over the twelve months before the dismissal. Pure expense allowances do not necessarily fall within that. That means that the actual dismissal cost is sometimes higher than a simple calculation based on the monthly salary would suggest.
You do not always have to motivate a dismissal spontaneously
A private-sector employer does not have to communicate the reason for dismissal spontaneously in every case. For employees who fall under cao nr. 109 the employee may, however, request according to the prescribed procedure to be informed of the concrete reasons for the dismissal.
That distinction is important. It does not mean that you as an employer can act without a reason, but that there is a legal difference between having a defensible reason for dismissal and having to communicate it spontaneously. For employers, consistent file-building is therefore useful. Not because an extensive personnel file is legally required for every dismissal, but because the reason may later be called into question.
For employees who fall under cao nr. 109, an indemnity may moreover be due when a court assesses the dismissal as manifestly unreasonable.
The person you want to dismiss may be protected without that being immediately visible
A point of attention that employers sometimes underestimate is special dismissal protection. For staff representatives on the works council or the Committee for Prevention and Protection at Work, for example, particularly strict rules apply. Unelected candidates in social elections can also enjoy protection. They may in principle only be dismissed for a serious cause that is first recognised by the labour court, or for economic or technical reasons according to the special statutory procedure.
A notable aspect is the so-called occult protection period in social elections. Protection can already begin before the employer officially knows who is a candidate. As a result, an employer can in a given period dismiss someone without knowing that that person will later prove to be protected with retroactive effect. That makes a prior check of possible protected statuses particularly important.
In the event of serious cause, the clock starts running as soon as the facts are sufficiently known
A dismissal for serious cause allows the collaboration to be stopped immediately and without severance indemnity or notice period, but only when a serious fault makes any further professional collaboration immediately and definitively impossible.
The procedure is strict. The termination must take place within three working days from the day following the day on which the relevant facts became known. Subsequently, the concrete facts constituting the serious cause must also be communicated within a second period of three working days. Moreover, the party relying on the serious cause must prove its existence.
The interesting point therefore does not only lie in the question of whether a behaviour is “serious enough”. Also when sufficient knowledge of the facts existed within the company can become decisive. An internal investigation must therefore be organised carefully. Deciding too quickly can be problematic, but unnecessary delay can equally affect the deadline.
Immediate dismissal and dismissal with notice work differently in law
Upon termination with a severance indemnity in lieu of notice the employment contract ends immediately. For that method of termination the law does not in itself prescribe a particular form requirement. An oral dismissal can therefore have legal effect, although written confirmation is of course advisable for evidential reasons. That differs from a dismissal in which a notice period is served. The way in which the notice is communicated and its content are legally much more formal in that case.
For employers it is therefore important to decide before communicating which method of termination will be used. Improvising a dismissal conversation and only afterwards determining which legal form should be given to it can create unnecessary problems.
Not every contractual cost disappears upon dismissal
The end of the employment contract also does not automatically mean that all contractual arrangements cease to be relevant. Think of provisions on confidentiality, intellectual property or a valid non-compete clause. Conversely, upon termination it must be examined which acquired benefits still need to be included in the final settlement or the severance indemnity.
That is why it is useful, in a dismissal, not only to look at the statutory dismissal rules, but again at the full employment contract, applicable collective agreements, the work rules and other applicable arrangements. Terms of employment can after all also flow from collective agreements, oral arrangements or custom within the company.
A reorganisation does not automatically give carte blanche
Even when a dismissal appears logical from a business-economic perspective, special rules may apply. Thus employees in a transfer of undertaking that falls under cao nr. 32bis cannot be dismissed merely because of that transfer. A dismissal may however be possible for a serious cause or for economic, technical or organisational reasons entailing changes in employment.
For employers this means that the timing and substantiation of a dismissal in acquisitions and restructurings can be at least as important as the decision itself.
The strongest position is created before the dismissal
An employer’s legal position is ultimately not determined by one perfect dismissal letter. A coherent combination of employment contracts, work rules, internal policies, correct pay and benefits structures and consistent documentation provides far more support when an employment relationship needs to be terminated.
Good preparation moreover makes visible which risks actually apply: a special protected status, variable remuneration that increases the dismissal cost, a problem with the motivation of the dismissal, or a formal procedure that must not be overlooked.
Our lawyers support employers on employment-law questions and in legally structuring their personnel documentation, so that important decisions can be taken within a correct and workable legal framework.
