Constitutional Court Adopts Position Regarding Validity Of Contractual Notice Clauses

Author:Ms Catherine Longeval
Profession:Van Bael & Bellis

On 18 October 2018, the Constitutional Court (Grondwettelijk Hof/Cour Constitutionnelle - the "Constitutional Court") handed down an important judgment regarding the validity of contractual notice clauses included in employment contracts with higher paid white-collar employees entered into before 1 January 2014 (Judgment n°. 140/2018 - The Constitutional Court held that contractual notice clauses in such contracts remain enforceable and must therefore be taken into account when calculating that part of the notice period applicable for work performance prior to that date.

Unified Status Law and Related Controversy

As from 1 January 2014, the Law of 26 December 2013 concerning the introduction of a unified status for blue-collar and white-collar employees with regard to notice periods (the "Unified Status Law") entered into force, introducing unified notice periods for both white-collar and blue-collar employees.

Thus, as from 1 January 2014, a transitional regime applies to the dismissal of an employee whose employment contract commenced before 1 January 2014. Under that regime, the notice period to be observed by the employer must be determined in accordance with a two-step-calculation.

As a first step, the Unified Status Law makes a distinction between lower paid and higher paid white-collar employees. For the first category, the notice period is calculated in accordance with the statutory or contractual rules that were in force on 31 December 2013 in order to preserve the accrued rights of the employees concerned. By contrast, for the second category, the Unified Status Law determines a notice period of one month per commenced year of service as of 31 December 2013, subject to a minimum of three months.

As a second step, the fixed notice periods determined by the Unified Status Law must be applied for the service accrued as from 1 January 2014.

The above rule of one month's notice per commenced year of service has given rise to several court cases in relation to the validity of deviating notice clauses. Under prevailing dismissals legislation...

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