No return to the Claeys formula
On 26 October 2023, the Parliament adopted the Draft Bill on various labour provisions.
One of the most anticipated provisions of the Draft Bill was the correction of previous legislation, namely the law of 20 March 2023 amending the Unified Status Act, which would have inadvertently had the effect of reapplying the Claeys formula.
Below, you will find more insights.
Why was this correction needed?
The Act of 20 March 2023 removed the so-called “double photo” regime for resignations by the employee. This amendment will enter into force on 28 October 2023.
From then on, only the new notice periods will apply to resignations, regardless of the date of employment. This means that both for employees who were employed before 1 January 2014 and those who commenced employment thereafter, the notice period in the event of notice being given by the employee is a maximum of 13 weeks. The reason for this is that the Unified Status Act entered into force more than eight years ago (see Ezine).
So far, the amendment by the law of 20 March 2023 makes sense. After all, the intention was to prevent the maximum 13-week period from being exceeded when the employee gives notice.
But due to negligent legislative work, it suddenly appeared that even for higher white-collar employees who were employed before 1 January 2014, (part 1 of) the notice period would have to be renegotiated after the notice was given or the Court would have to determine it (resulting in a revival of the so-called Claeys formula). The intention of the Unified Status Act was precisely to avoid this.
The Draft Bill therefore puts an end to this and now provides that: "For white-collar employees whose annual salary exceeds EUR 32,254 on 31 December 2013, by way of derogation from the second paragraph, this period will be set at one month per started year of seniority in case of notice being given by the employer, with a minimum of three months, unless a valid clause on the notice period exists on that date of 31 December 2013, in which case this clause will be applied."
Moreover, the legislator has added that the fixed rate of one month per started year of seniority does not apply if there is a valid termination clause on 31 December 2023. In doing so, the legislator has brought the text of article 68(3) Unified Status Act in line with the case law of the Constitutional Court. The text does not stipulate that the termination clause must be more favourable than the application of the Unified Status Act, so there is no reason to believe that unfavourable clauses may not be applied.
The Draft Bill has yet to be published in the Belgian Official Gazette. It is scheduled to enter into force on 28 October 2023, not coincidentally the same day the Act of 20 March 2023 enters into force. This will avoid any further discussion on the topic.
Good to know: As an employer, you do not have to adjust anything to your dismissal policy. When the employee gives notice, the maximum notice period is 13 weeks.