Social Elections 2024: Watch out for the hidden protection period!
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Employee representatives on the works council and health and safety committee benefit from a special form of dismissal protection, which covers all effective members and substitute members sitting on those bodies, as well as any employees who were candidates for but were not elected.
The protection against dismissal starts on the 30th day before the posting of the notice announcing the election date (X – 30), ie between 14 January and 27 January 2024 depending on when exactly the election date will be set in your company.
However, the formal lists of candidates must only be submitted at the latest 35 days after the posting of that same notice (X + 35), ie between 19 March and 1 April 2024 (again, depending on your election date). Hence, there is a 65-day period of “hidden protection” from X – 30 to X + 35 during which candidates are already fully protected against dismissal but the employer is not yet formally aware of who these candidates are.
Furthermore, there is also a “discrete” protection period that lasts even longer, until day X + 76, ie between 29 April and 12 May 2024. That is the ultimate date for representative trade unions to, in specific instances, replace candidates on the candidate lists and appoint new candidates. This means that you will only be absolutely certain about the identity of the protected candidates somewhere between 29 April and 12 May 2024, even though they will have been protected as of mid-January 2024.
The period of protection will continue until the moment when the employee representatives elected at the next social elections (presumably in 2028) take up their positions.
During any period in which a (candidate) employee representative enjoys "protected status", they may only be dismissed for:
(i) serious cause, as recognized in advance of the contemplated dismissal by the labour court; or
(ii) “economic or technical reasons” (eg, closure, reorganisation of certain business activities of the company, etc.), as recognized in advance of the contemplated dismissal by the Joint Committee.
If a protected employee is dismissed in violation of these specific procedural rules, they will be entitled to protection compensation depending on their length of service:
- two years’ salary for less than 10 years’ service;
- three years’ salary as from 10 to less than 20 years’ service; and
- four years’ salary as from 20 years’ service.
The employee can also request reinstatement. If the employer refuses a request for reinstatement, the employee will be entitled to additional compensation equal to the remuneration due from the dismissal date until the end of the term of office of the members of the works council or health and safety committee (in other words, until the moment when new members elected at the next social elections, presumably in 2028, take up their positions).
How can you prepare?
Depending on the election date set for your company, the hidden protection period will start between 14 January and 27 January 2024. If you are currently considering implementing any dismissals, we would advise you not to proceed with these dismissals during this period. If you intend to proceed with any dismissals for serious cause or for economic or technical reasons, we are ready to assist.
Of course, you will need to remain watchful of the members and former candidates for the current works council and health and safety committee, whose protection will continue until the employee representatives that will be elected in May 2024 take up their positions.