The Constitutional Court rekindles the debate on the necessity of a hearing prior to a dismissal in the public sector

There is a long-standing controversy revolving around the question of whether a public-sector employer is obliged to conduct a hearing prior to the dismissal of a contractual worker. On 12 October 2015, the Supreme Court put an end to this controversy (see our newsflash of 6 November 2015 ). The Council of State followed the Supreme Court’s position. However, in a decision of 6 July 2017 (n°86/2017) the Constitutional Court has brought the discussion back to life.

In a judgment of 12 October 2015, the Supreme Court held that neither the law on the formal reasons for administrative acts nor the general principles of good administration (in particular as concerns prior hearing) are to be applied to a dismissal of a contract worker in the public sector. This decision was confirmed by the Council of State in its judgment of 27 September 2016 and subsequently applied by the labour courts and tribunals.

Constitutional Court’s position

The Constitutional Court was recently asked to consider the respect of the principle of equal treatment and non-discrimination between statutory workers and contractual workers in the public sector.

In its decision of 6 July 2017, the Constitutional Court holds that, despite their different legal statuses, statutory and contractual workers in the public sector are in a comparable situation when the employer is considering terminating the employment relationship.

Subsequently, the Court recalled that the principle of audi alteram partem implies that a worker that faces being subjected to a serious measure following a negative appraisal of his conduct must be informed and given the opportunity to explain himself prior to the execution of the measure.

The Court concluded that interpreting the provisions of the Employment Contracts Act in such a way that it would prevent public-sector workers from exercising their right to a hearing prior to their dismissal for reasons related to their conduct or aptitude would be considered as a violation of the principle of equal treatment. If these provisions are interpreted in a way that they do not deprive such workers of their right to a prior hearing, the principle of equal treatment is not violated.

Note that the Court’s decision does not address the provisions of the Employment Contracts Act with respect to a dismissal for serious cause (Article 35).

> Action point

Taking into account the legal uncertainty in this regard, we recommend that public-sector employers organise a hearing with the contract worker when considering a dismissal for reasons related to the employee’s conduct or aptitude. We believe that this cannot affect the possibility and obligation of the employer to comply with the notice period of three working days in case of a dismissal for serious cause.