Supreme Court takes strict approach to pre-2014 notice period rules
Traditionally, legislation on employment contracts stipulated different notice periods for blue-collar and white-collar workers. The notice periods for blue-collar workers were far shorter, but only blue-collar workers could claim an indemnity of six months’ remuneration for arbitrary dismissal, defined as a dismissal not based on the worker’s conduct or the employer’s organisational requirements.
The background
Back in 1993, the Constitutional Court decided it was questionable to treat white-collar and blue-collar workers differently. In a judgement of 7 July 2011, the Constitutional Court ordered the government to end this difference by 8 July 2013. The termination rules were harmonised with the Act of 26 December 2013, which entered into force on 1 January 2014.
The Act of 26 December 2013 introduced new notice periods, applicable to both blue-collar and white-collar workers, that were somewhere in between the different notice periods.
The three-step reasoning under the transition measures
The new notice periods only apply to service from 1 January 2014.
For workers employed on 31 December 2013 whose contracts are terminated in 2014 or later, the Act of 26 December 2013 sets out a three-step calculation:
- For service years up to 2013 (included), the notice period is determined based on the legislation as applicable on 31 December 2013 (subject to some changes). For these service years, the difference between blue-collar workers and white-collar workers still applies.
- For service years as of 2014, the notice period is determined based on the new, harmonised, notice periods.
- The applicable notice period is the sum of both parts.
These transition measures resulted in considerable case law on how to construe “a worker whose employment contract started before 1 January 2014.” The Supreme Court judgement of 1 June 2026 is part of this case law.
The case at hand
A white-collar worker joined a truck garage in 2007. His employment contract was terminated by mutual consent on 30 June 2014. On 1 July 2014, he joined a different company in the group on the same terms of employment, so the period of continuous employment since 2007 was taken over by the new employer. The worker was dismissed in 2020.
The question arose how to calculate the indemnity in lieu of notice:
- The employee argued his period of continuous employment started in 2007, so the transition measures under the Act of 26 December 2013 applied. The employee claimed an indemnity in lieu of notice of 7 months for the service years 2007 up to 2013 and 21 weeks for the service years 2014 up to 2020.
- The employer argued the employee only joined the company in July 2014, so the transition measures wouldn’t apply. The employer argued only the new notice periods applied, whereby an employee with 13 years continuous employment is entitled to a notice period of 42 weeks in the case of a dismissal.
In its judgement of 1 June 2026, the Supreme Court followed a literal interpretation. The Act of 26 December 2013 stipulates the transition measures apply to “a worker whose employment contract started before 1 January 2014”. In the case at hand, the worker only signed an employment contract with the second truck garage in June 2014. The Supreme Court concluded the transition measures under the Act of 26 December 2013 didn’t apply and the applicable notice period was 42 weeks.
The Supreme Court made a distinction between the start date of the period of continuous employment to be used to calculate the notice period and the question of whether the employment contract was signed before 1 January 2014 to determine whether the transition measures apply.
Belgium social elections 2028: The reference period starts now
Belgian employers should start preparing now for the 2028 social elections, as the employee-count reference period runs from 1 October 2026 to 30 September 2027.
Organisations with at least 100 workers in principle have to set up a works council. Organisations with at least 50 workers should set up a committee for prevention and protection at work.
The staff representatives for these groups are elected in social elections, which normally take place every four years.
The most recent social elections took place between 13 and 26 May 2024. So the next ones are expected to take place in May 2028. The legislation should still has to be amended, as article 9 of the Act of 4 December 2007 concerning the social elections, as it stands today, stipulates the social elections take place between 13 and 26 May 2024. Parliament should thus still approve an Act updating these dates.
Article 7 of the Act of 4 December 2007 states the threshold of 100 workers for a works council and 50 workers for a committee for prevention and protection at work is assessed based on the number of workers in service “during a period of four quarters starting on the first day of the sixth quarter preceding the election day”. Assuming the next social elections take place in May 2028, this means the reference period is the period between 1 October 2026 and 30 September 2027.
The reference period is different for temp agency workers. Only temp agency workers in the second quarter of 2027 will be considered if the elections take place in May 2028.
Temp agency workers replacing an existing worker with a suspended employment contract are always disregarded for the threshold. But the replaced worker does count, irrespective of the reason or the duration of the suspension. The same rule applies to workers with a replacement employment contract.
The number of workers in service is counted by dividing the number of days in the reference period the worker was in service by 365. For temp agency workers, the number of days in service during the second quarter of 2027 is divided by 92.
If a worker's work schedule doesn’t reach three-quarters of the full-time work schedule, the number of days in service is divided by 2. A part-time worker in a 70% work schedule in service during the whole reference period only counts as half a worker in calculating the threshold.
If an employer is approaching the threshold for having to establish a works council or a committee and wants to stay under the threshold, this employer could take the following measures as of 1 October 2026:
- The reference period for the employer’s “own” workers is 1 October 2026 to 30 September 2027. The reference period for temp agency workers is on the other hand 1 April 2027 to 30 June 2027.
In the period between 1 October 2026 to 31 March 2027 and the period between 1 July 2027 to 30 September 2027, an employer could make maximum use of temp agency workers, as the threshold disregards these temp agency workers. The employer still has to comply with all conditions and procedures for using temp agency workers.
- For the same reason, the number of workers will be lower when having as few temp agency workers as possible in the period between 1 April 2027 to 30 June 2027. A day worked by a temp agency worker in this period is divided by 92, whereas the same working day by an “own” worker is divided by 365.
- The threshold will be lower when employing part-time workers with a work schedule just below 75% of the full-time working hours. A single part-time worker with a 70% work schedule in service during the full reference period counts as half a worker, whereas two part-time workers with a 35% work schedule in service during the full reference period count as 1 worker.
- Subcontractor staff are in principle disregarded, so an employer facing an increase of work during the reference period might want to subcontract work, rather than recruiting extra staff.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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