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What does the legislation currently stipulate?
As a reminder, the current legislation makes a distinction between two forms of temporary unemployment: temporary unemployment for force majeure and temporary unemployment for economic reasons. These two forms of temporary unemployment are subject to different procedures and conditions, in particular with regard to their effect on a notice period. In the case of temporary unemployment for economic reasons, the notice period is suspended; this is not the case for the temporary unemployment for force majeure.
The difference is not insignificant:
- In the 1st case, the notice period is suspended and therefore, in practice, extended by the duration of the temporary unemployment; the cost remains in all circumstances at the expense of the employer ;
- In the 2nd case, the notice period is not suspended and therefore, in practice, continues to run even during the days of temporary unemployment; the cost is therefore partially (or even totally) borne by the Belgian State, with a saving for the employer.
What is the fate of the notice period served during a period of temporary unemployment « covid-19 » ?
The temporary unemployment « covid-19 » is a hybrid, ad hoc form of temporary unemployment set up to simplify procedures and conditions in the very specific context of the corona crisis. Although it is more similar to the system of temporary unemployment for force majeure, there are many questions about its effects at all levels (e.g. social security aspects, impact on holidays, etc.).
There have been many discussions in the past few weeks about whether or not the notice period served by an employer before or during a period of temporary unemployment « covid-19 » is suspended during such period (and thus prolonged).
What might change? Will the contemplated measures have a retroactive effect?
The Parliament's Social Affairs Committee approved a proposal of law on Tuesday 5 May 2020 aiming to suspend the notice period, served by an employer before or during a period of temporary unemployment « covid-19 », between 1 March and 30 June 2020. The new piece of legislation is expected to be adopted soon.
What does this mean in practice?
If you have terminated an employee's employment contract with a notice period to be performed and this notice period was running (and/or is currently still running), this notice period will be suspended until 30 June 2020. The notice period will therefore be extended after 30 June 2020 with the period of temporary unemployment. In the event of partial temporary unemployment, the notice period will be suspended during the days of unemployment but will continue to run during the days worked and the number of extension days will have to be calculated.
But what about the employee who has already left the company in the meantime? In practice, it will not be possible to extend the notice period since the employment contract has already ended. In our opinion, the employer will therefore be liable in this case to pay a balance compensation instead of notice, that can be claimed by the employee.
If not, depending on the concrete situation:
- The National Unemployment Office could temporarily exclude the employee from (full) unemployment benefits, at least for the period that should have been covered by the compensation instead of notice; or
- The National Unemployment Office could claim the reimbursement of the benefits already paid to the employee for the period that should have been covered by the compensation instead of notice.
Of course, if an employment contract has been terminated with immediate effect, the above will in principle have no impact.
