Constitutional Court rules on application of conventional notice periods concluded before 1 January 2014

Written by Pascale Moreau 5 November 2018


In a recent judgement, the Constitutional Court ruled that – when calculating the notice period for higher earning white collar workers who entered into service before 1 January 2014 – validly concluded agreements on the notice period that existed on 31 December 2013 should be taken into account when executing part 1 of the 2-step calculation of the notice period.

Harmonisation of notice periods

The Unified Status Act of 26 December 2013 brought about the long awaited harmonisation of the notice periods for blue collar and white collar workers, starting 1 January 2014.

A transitional measure was included in the Unified Status Act for employees who entered into service before 1 January 2014. Indeed, the notice period for such employee has to be calculated by using a 2-step calculation method whereby the first step relates to the employee’s seniority up until and including 31 December 2013 and the second step covers the seniority as from 1 January 2014.

For the calculation of the first step in this respect, the principle of legitimate expectations is used, whereby a picture is taken of the situation on 31 December 2013: the notice period is determined based on the legal, statutory and conventional regulations that were applicable on 31 December 2013.

However, a specific provision is included in the calculation of this first step for white collar workers whose yearly salary exceeded EUR 32.254 on 31 December 2013. For those higher earning white collar workers, no mention is made of the legal and conventional provisions that were applicable on 31 December 2013, but rather a standardised notice period of 1 month per started year of seniority, with a minimum of 3 months, is set forth.

Discourse on conventional notice periods

As from the moment the Unified Status Act entered into force, this specific provision for higher earning white collar workers has sparked controversy, notably regarding the application of agreements on the notice period that were validly concluded before 1 January 2014 between employers and their higher earning white collar workers.

Based on the text of this provision, such agreements on the notice period should be discarded in favor of the standardised notice period when determining the first part of the 2-step calculation of the notice period.

However, the parliamentary preparations of the Unified Status Act state that it was the intention of the legislator to have all such clauses that existed on 31 December 2013 remain fully valid after said date, in order to safeguard the parties’ legitimate expectations.

The discrepancy between the actual text of the Unified Status Act and its parliamentary preparations has resulted in case-law going both ways and thus impacted legal certainty in this respect.

The Constitutional Court intervenes

Against the above backdrop, the Constitutional Court was recently presented with a request for preliminary ruling. More specifically, it was asked whether the fact that the (text of the) Unified Status Act does not allow for the application of a valid agreement on the notice period concluded by higher earning white collar workers before 1 January 2014 when calculating the first part of the notice period, violates the principle of equal treatment. Indeed, the Act does allow for contractual provisions on the notice period that existed on 31 December 2013 to be taken into account when calculating the first part of the notice period for lower earning employees.

In its judgement of 18 October, the Constitutional Court answered the above question in the positive. It ruled that the Unified Status Act violates the principle of equal treatment if it does not allow for the application of a validly concluded agreement on the notice period that existed on 31 December 2013 when calculating the first part of the notice period for higher earning white collar workers.

The Court also stated that, awaiting legislative action, it is up to the labour court that presented it with the request for preliminary ruling to end the violation of the principle of equal treatment. This means that the labour court in question should – in the case before it’s bench – fully apply the agreement on the notice period that was concluded before 1 January 2014 when calculating the first step of the notice period for the higher earning white collar worker.

Note that the Court’s ruling only pertains to the application of an agreement on the notice period that validly existed on 31 December 2013 for the calculation of the first step of the 2 part calculation method of the notice period, i.e. for the seniority up until and including 31 December 2013. The ruling however does not provide an answer to the question whether such agreement should also be applied for the second step of the calculation – covering the seniority as from 1 January 2014 – if it is more beneficial than the provisions of the Unified Status Act in this respect. On this matter, the debate will thus continue.

Conclusion

The Constitutional Court has clearly indicated the way forward in trying to terminate the discourse regarding the application of agreements on the notice period that were validly concluded before 1 January 2014 between employers and their higher earning white collar workers. Whether or not – and in which time frame – the legislator will adjust the provision of the Unified Status Act to end the violation of the principle of equal treatment remains unclear. In the meantime, labour tribunals – and courts will however most likely follow the Constitutional Court’s ruling.  

Consequently, when terminating the employment agreement of a higher earning white collar worker who entered into service before 1 January 2014, it is important to verify whether a validly concluded agreement on the notice period existed on 31 December 2013. If so, this agreement will have to take precedence over the standardised notice period included in the Unified Status Act when calculating the first step of the notice period.