New Notice Periods As From 2012: Is This The End Of The Claeys Formula?

Brussels to the Point December

When hiring new employees, it is important to keep in mind the new notice periods applicable to employees that effectively start to work after 1 January 2012.

In order to more closely align the status of blue-collar and white-collar employees, as from 1 January 2012, several new rules will enter into force for blue-collar employees (new notice periods, a dismissal allowance paid by the national unemployment authorities) and white-collar employees (new notice periods). Specific rules will apply to employees who worked for the employer before 1 January 2012 as temporary employees.

In the event of termination of the employment contract of a white-collar employee, the main changes can be summarised as follows.

Low-level employees

Existing rule

If the employee's gross annual remuneration is less than EUR 31,467 (figure for 2012, indexed annually), the employee is entitled to at least three months' notice if s/he has worked for the employer for less than five years. The notice period is increased by three months for each additional commenced five-year period of employment. This represents the statutory minimum.

As from 1 January 2012

There are no changes.

High-level employees

Existing rule

If the employee's gross annual remuneration exceeds EUR 31,467 (figure for 2012, indexed annually), the length of the notice period may not be fixed in advance in the employment contract (unless the employee earns more than EUR 62,934 per year - figure for 2012, indexed annually).

Upon termination of the employment contract, the parties agree on the notice to be given by the employer. If the parties cannot reach an agreement, the competent labour court will determine the notice period and can order the employer to pay additional compensation in lieu of notice. In practice, the so-called Claeys formula is often used to determine the length of the notice period. The current trend is to award at least one month's notice per year of employment.

As from 1 January 2012

Belgian law will now provide for fixed notice periods, expressed in days: the statutory notice period will be 30 days per commenced year of employment. However, the notice period may not be less than the statutory minimum of three months' notice for each commenced five-year period of employment. Therefore, the following notice period will apply:

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