Social elections 2024 (3/4): occult period – watch out for the start!

Legal Eubdate
15 January 2024

The beginning of the year 2024 announces the next important date in the procedure: day “X-30”. This date marks the start of the dreaded “occult” period during which employee representative candidates are protected from dismissal. For companies whose X-day notice is due on 13 February 2024, the occult period already started on 14 January 2024. This contribution highlights the essential aspects of the occult period in five takeaways.

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The occult period – five takeaways

Occult?

The “occult” period corresponds to the period during which companies that have to organise social elections do not (definitively) know who the workers are who will be nominated as candidates. During this period, these unknown candidates are already protected against dismissal. Dismissals during this period are therefore strongly discouraged.

65 days or more? 

The start of the occult period, meaning the start of the period of protection against dismissal for employee representative candidates, is set at day X-30, i.e. between 14 January 2024 and 27 January 2024 (depending on the date chosen for the social elections).

It is usually said that the occult period ends when the lists of candidates are made available to the employer, on day X+35, i.e. between 19 March 2024 and 1 April 2024. It should be noted, however, that in certain cases the trade union organisations in place may replace a candidate originally nominated up until day X+76. The occult period may thus extend to this date, i.e. between 29 April 2024 and 13 May 2024.

If dismissal is required, we therefore strongly recommend that you wait until day X+76, as before that date you could unknowingly dismiss a protected worker, thereby exposing yourself to severe penalties.

Any dismissal? What about termination by mutual consent?

The protection of employee representative candidates prohibits any “dismissal”. Any termination of the employment agreement by the employer, with or without compensation and with or without notice, is considered a dismissal. Note that any modification of an essential element of the employment agreement without the worker’s consent constitutes an act of termination, which is also a prohibited dismissal. Termination of the employment agreement by the worker for serious cause attributable to the employer also triggers protection.

However, termination of an employment agreement due to the expiry of the term in case of a fixed-term contract, or due to force majeure, or by mutual consent between the employer and the worker is not considered a prohibited dismissal.

Note that even dismissal for serious cause is far more complex to carry out during the occult period. The original solution proposed by the Court of Cassation is to reinstate the work subject to subsequent recognition of serious cause by the Labour Court and then initiate the specific procedure for the recognition of serious cause before the Labour Court within three working days of the reinstatement.

What exactly are the risks?

If the employer terminates the employment agreement of an employee representative or an employee representative candidate without complying with the conditions and procedures, the employer may be liable to pay particularly high compensation, ranging from two to more than eight years’ remuneration!

The amount of the protection compensation depends on the time of dismissal, the years of service of the worker concerned and whether the dismissed worker applied for reinstatement in time.

Does a worker dismissed during the occult period automatically benefit from protection compensation?

No, not automatically. A worker who has been dismissed during the occult period will only benefit from the two types of protection compensation (lump-sum compensation depending on the duration of the employment and variable compensation equal to the remuneration that would have been due until the end of the mandate) provided that the worker or his/her trade union organisation applies for reinstatement in the company in the form and within the time limits provided for by law and this application for reinstatement is rejected by the employer. A worker who is reinstated will therefore not benefit from any protection compensation but will be entitled to the salary lost prior to the reinstatement.

To follow

In the final contribution in our series on social elections, we will turn our attention to the post-election period, in particular the preparations for the establishment of the social consultation body or bodies.

The Eubelius Social Elections Team is ready to help you through the 2024 social elections with legal advice, support with negotiations and assistance, as well as representation in court in the event of litigation.