We would hereby like to draw your attention to some practical implications which in our view should be on any employer’s to-do list.
Take a picture!
For those employees already in service in 2013, take a picture of the situation on 31 December 2013. Based on the ‘transitional rules’, future notice periods or indemnities will be determined based on two separate calculations: the period before 31 December 2013 and the period after this date.
This means that for any future termination of current employment contracts, you need to be able to determine the notice period up to 31 December 2013, and you will need some historical data to do so e.g. for white collar employees, you will need to know whether they exceeded the salary threshold of EUR 32,254 on 31 December 2013.
To avoid loss of relevant information over time, we advise taking this picture already today. This will allow for a smoother process for contract terminations in the future. We can take this picture for you.
Review current termination clauses
Existing contracts may include termination clauses which were perfectly valid at the time of the signing of the contract.
However, any limitation of the notice period to the legal minimum under the old regulations (three months per started period of five years of seniority), may no longer be possible under the new regulation. This may result in a potential hidden increase of termination costs.
On the other hand, where such clauses have been used to grant employees additional rights, the possibility to invoke these legacy clauses still remains unclear. The law after all explicitly foresees that for all employees earning more than €32,254 (amount to be assessed on 31 December 2013), the notice period will be set at one month per started year of seniority, as such leaving no room for any previous contractual clauses stating otherwise in their employment agreement.
Although this strict interpretation may not be in line with the ratio legis, it is best not to take any chances, when a mere written confirmation of the former clauses may be sufficient. Indeed, the law explicitly allows parties to deviate from the statutory notice periods, with the understanding that the new notice periods will always serve as a minimum level of protection for the employee.
All existing clauses should be reviewed and the impact should be assessed on a case-by-case basis to determine practical action points.
Review work regulations
We recommend reviewing the content of work regulations to ascertain that the proper references are included when it comes to the termination of the contract and that these work regulations do not refer to the formerly applicable rules (e.g. trial period which is abolished). Certain newly introduced rules, like the possibility to check medical absence (e.g. hours during which the employee should be at home, allowing a medical control) can additionally be introduced. Where required, we can help you with this.
Review contract templates
We recommend reviewing your current contract templates, ensuring the proper references are included when it comes to the termination of the contract, and to make sure references to rules that no longer apply (e.g. trial period, carenz day) are no longer included.
For any further information or assistance, please contact Bart Elias (firstname.lastname@example.org 03/259.31.56) or attend our seminar on the unified status.