Every time there are social elections, you will hear about the so-called "occult" period. During this period, the companies that need to organise social elections do not (definitively) know which employees will be presented as candidates, although candidates already benefit from protection against dismissal. Dismissal during this period is therefore strongly advised against.
Protection against dismissal
Employee representatives on the works council and the committee for prevention and protection at work, as well as non-elected candidates, are protected against dismissal. They may only be dismissed for serious cause with the prior approval of the labour court or for economic or technical reasons which have previously been approved by the competent joint committee. Hence, the only way to terminate the employment contract of such protected workers in a regular manner requires one of these two procedures being successfully conducted. Any other form of unilateral termination (caused) by the employer is irregular.
The "occult" period
According to the electoral procedure, the final lists of candidates must be submitted to the employer no later than the 35th day following day "X". This is day "X+35", which will be situated between 17 and 30 March 2020, depending on when day "X" falls within the undertaking. Day "X" is the day of the posting of the notice announcing the date of the elections in the undertaking.
The protection against dismissal starts on the 30th day prior to day "X". This is day "X-30", which will fall between 12 and 25 January 2020. The protection ends at the latest on the date of installation of the candidates who are elected at the subsequent elections.
Thus, protection against dismissal begins well before the employer is aware of the candidacies. Hence the so-called "occult" period, which extends from day "X-30" to (at least) day "X+35". In principle, there is therefore a period of 65 days during which some of your employees benefit from protection against dismissal without you being aware of their identity.
In practice, it is advisable to exercise caution for a longer period, because the "occult" period may last longer than 65 days:
- The submission of the candidate lists can take place not only by handing them over directly to the employer or by uploading them to the web application, but also by sending paper lists to the employer by post. In the latter case, the date of submission of candidates is determined by the date on which the lists are sent by post. It is therefore possible that the employer could still receive a valid list of candidates by post a few days after day "X+35".
- In some cases, representative organisations may replace an initially submitted candidate up until day "X+76", which will fall between 27 April and 10 May 2020.
- In the event of a judicial appeal, it is possible that day "X" will be postponed, resulting in postponement of the entire procedure and therefore also of the end of the "occult" period.
If a dismissal is necessary, we recommend that it should be done before the end of this year or alternatively postponed until the second half of 2020.