Constitutional Court retains the current level of protection offered to employee representatives

The Belgian Constitutional Court considers that the protection against dismissal afforded to (candidate) employee representatives in the Works Council and/or the Committee for Prevention and Protection at Work does not violate the principle of equality.

The Labour Tribunal of Huy had asked the Constitution Court whether the restriction of grounds for dismissal (principally serious cause and economic or technic reasons) and the draconian compensation for dismissal (up to eight years of salary) did not violate the principle of equality compared to those of other protected workers such as union representatives or prevention advisors.

In its judgement of Wednesday, 10 October 2012, the Constitutional Court ruled twice that the specific protection regime laid down in the Act of 19 March 1991 is justifiable.

The Constitutional Court ruled that this regime rests upon a legitimate distinction with respect to a union representative, since the regime for union representatives is not set down by law but by a collective bargaining agreement closed at national level no. 5 and since union representatives are appointed in a fundamentally different way to (candidate) employee representatives.

With regard to a prevention advisor, the Constitutional Court ruled that, unlike employee representatives, such individual is not elected by all the employees and does not represent the entire staff taking into account his/her independence.

> Action point

Ensure that no decision to dismiss a protected employee can be considered without full regard being systematically paid to the requisite legal/sectorial protection enjoyed by such individual.