The Act of 4 May 2020 regulating the suspension of the 2020 Social Elections procedure due to the COVID-19 pandemic suspends the social elections procedure and regulates the consequences thereof. In this contribution, we explain the new rules regarding the protection against dismissal of employee representatives and candidates.
Three-point recap of the normal dismissal protection regime
Without returning in detail to what we described in a previous contribution, here is a recap in three bullet points of the normal dismissal protection regime:
Protection – Employee representatives in the works council and the committee for prevention and protection at work, as well as non-elected candidates, may only be dismissed for serious cause with prior approval of the labour court, or for economic or technical reasons with prior approval of the joint committee. In all other cases, their dismissal during the protection period is unlawful and gives rise to an obligation for the employer to reinstate the employee (in certain cases) or to pay protection compensation. The amount of such compensation is determined by law and is extremely high.
Start of the protection period – As a rule, the protection against dismissal of new candidates starts on the 30th day prior to day "X" (the day of posting of the notice announcing the date of the elections in the undertaking), i.e. on day "X-30". (In the original electoral calendar for the 2020 Social Elections, day "X-30" was between 12 and 25 January 2020.)
- The first part of the protection period is "occult" – The deadline for the trade unions to submit their final lists of candidates to the employer is day "X+35" (in the original electoral calendar, this day fell between 17 and 30 March 2020).
As the protection period already starts on day "X-30", in the 65 days between day "X-30" and day "X+35" the employer still does not know which employees will be on the final candidate lists, while the employees concerned are already benefitting from the protection. (Moreover, in certain cases, trade unions may replace an initially submitted candidate up to day "X+76" (which would have been the end of April/beginning of May 2020 according to the original electoral calendar). If during this "occult" period the employer dismisses an employee who turns out to be a candidate, this is likely to be extremely costly for the employer.
The Act of 4 May 2020
The Act of 4 May 2020 implements the "Group of Ten" Declaration of 17 March 2020 (see our earlier contribution) and opinion no. 2,160 of the National Labour Council (NLC) of 24 March 2020 (see our earlier contribution).
The Act suspends the 2020 Social Elections procedure as from day "X+36". This means that the procedure is automatically put on hold once day "X+35" is completed.
A Royal Decree will determine when and how the procedure will be resumed. In its opinion no. 2,160, the NLC suggests the period from 16 to 29 November 2020 as the new electoral period. It remains to be seen (depending, among other things, on the further development of the COVID‑19 situation) which electoral period will ultimately be fixed by Royal Decree.
The Act of 4 May 2020 also regulates the consequences of the suspension. The guiding principles are to avoid any undesirable side effects of the suspension and to preserve acquired rights. For the protection against dismissal, this means that, as a rule, the protection is not impacted by the suspension unless otherwise specified in the Act. The Act does include a few corrective rules regarding the protection period and the protection compensation.
New rules on the protection period: Q&A
Question: Is it possible for me to dismiss an employee today who subsequently proves to be protected?
Answer: The trade unions had to submit their final candidates lists at day "X+35" at the latest (this day fell between 17 and 30 March 2020 according to the original electoral calendar).
This means that, today, you know exactly which of your employees are protected, namely:
- the candidates for the 2020 Social Elections who are on the final candidate lists, and
- the employees who are still protected as a result of the 2016 Social Elections (representatives in the present works council or committee and non-elected candidates).
Question: What about replacement candidates?
Answer: Once the suspension of the social elections procedure is over, in a few specific cases determined by law, trade unions will be able to designate replacement candidates. This can happen at the latest on new day "X+76" (i.e. 14 days prior to the future election day "Y"). The protection of these replacement candidates will (re)commence on the new day "X" (i.e. 90 days prior to the future election day "Y").
This means that the replacement candidates are protected before you know that they are (or will be) replacement candidates. In other words, the period between the new day "X" and the new day "X+76" is a new "occult" period. The exact dates of this period are still unknown. Based on the election period suggested by the NLC (16–29 November 2020), the start of the new "occult" period would be between 18 and 31 August 2020 and it would end between 2 and 15 November 2020.
The point to note is that, when contemplating dismissals, you should be fully aware of the new "occult" period, which is very likely to start mid-August!
Question: Are the employees who were protected as a consequence of the 2016 Social Elections still protected against dismissal today?
Answer: Yes, and if they are not candidates for the 2020 Social Elections, their protection will last until the installation of the new works council or committee (after the delayed 2020 Social Elections). If no 2020 Social Elections have to be held (because of the employees threshold not being reached or because of a lack of candidates), their protection will continue for six months starting from the first day of the new electoral period (yet to be determined by Royal Decree).
If they are candidates for the 2020 Social Elections, their protection will continue until after the 2024 Social Elections according to the normal rules.
The above also applies to non-elected candidates, unless they were also not elected at the previous elections. In that case, their protection stopped two years after the previous elections. For example: a candidate for the 2012 and 2016 elections who was not elected in either of those two elections was protected until mid‑2018.
Question: Are the new candidates for the 2020 Social Elections protected today?
Answer: Yes, their protection linked to that candidacy started on day "X-30" and continues during the suspension of the social elections procedure (and also after the suspension, according to the normal rules).
New rules on the protection compensation
The protection compensation that is due in case of unlawful dismissal includes, in certain cases, a "variable part".
This variable part is equal to the remuneration that the dismissed employee would have received for the period up to the end of the current mandates of the employee representatives in the existing works council or committee.
Those current mandates are extended as a result of the rule that the works councils and committees which were elected in 2016 will continue to function until the installation of the new bodies after the 2020 Social Elections (when these elections finally take place).
Because of the way the variable part is calculated, this extension of the current mandates results in an increase of the variable part of the compensation. The legislator considered this consequence to be disproportionate for employers who had dismissed a protected employee before 17 March 2020, i.e. before the first announcement of the suspension of the social elections.
The Act of 4 May 2020 thus provides two new temporary rules for the calculation of the variable part that would be due to an unlawfully dismissed employee protected as a result of the 2016 Social Elections who is not a candidate for the 2020 Social Elections:
Unlawful dismissal before 17 March 2020:
The period for the calculation of the variable part is capped at the fictional date of installation of the new works council or committee, i.e. the date on which the new works council or committee would have been installed if the social elections had taken place in May 2020.
Unlawful dismissal on 17 March 2020 or on a later date during the protection period:
The period for the calculation of the variable part is extended until the actual date of installation of the new works council or committee to be elected (after the 2020 Social Elections have finally taken place).
The Eubelius Social Elections Focus Team is keeping track of the situation. We are on standby, ready to help you through this unprecedented electoral challenge.