HR Law Focus Newsletter 11 July 2013: Dismissals Update

Dismissals Update: The consequences of 9 July 2013 on the ground

As has been widely publicised, on 7 July 2011, the Constitutional Court issued a ruling which stated that it can no longer be justified to draw a distinction between the treatment of workers depending on whether they carry out manual or intellectual work. The Court gave the protagonists till 8 July 2013 to do away with the inequality in respect of dismissal notice periods and first day of sickness leave.

On 5 July 2013, the social partners –with the help of the cabinet of the Minister of Work - came to produce new regulations in relation to dismissal notice periods and the abolishment of the exemption of salary for manual workers for the first day of sickness leave.

In view of the fact that the new regulations will only come into effect as from 1 January 2014, the consequences of the decision of the Constitutional Court are being pressed for in full by legal practitioners, businesses, HR managers, trade unions and so on as of 9 July. And rightly so! Indeed, the distinction between manual and intellectual workers in relation to dismissal notice periods and first day of sickness leave should have been eliminated by 8 July 2013.

But the Court's decision goes beyond dismissal notice periods and first day of sickness leave. The Court stated in its considerations that it would be inconsistent only to consider the difference in relation to the length of notice periods without taking account of its consequences in other labour law and social security matters, thus indicating that the entire difference between manual and intellectual workers had to be eliminated, including in other matters such as in relation to payment of salary, trial periods, annual holidays, incapacity for work, in-house social elections (separate election colleges) trade union representation, joint committees, separate divisions of the labour courts, and so forth.

Consequences for the future ....

.....for notice periods as from 9 July 2013

If, as of 9 July 2013, a dispute is brought before a labour court regarding the notice period for manual workers, the labour court must disregard section 59 of the Employment Contracts Act. In our view, the labour court will thus be faced with a lacuna in the legislation. The Employment Contracts Act no longer sets out any notice periods for manual workers. This applies not only for the provisions of the Employment Contracts Act but also for notice periods for manual workers set out in royal decrees and collective...

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