The derogation dismissal regime for blue-collar workers in the construction sector is discriminatory

In its judgement of 17 September 2015, the Constitutional Court ruled that the derogation dismissal regime provided by the Act of 26 December 2013 for blue-collar workers in the construction sector is discriminatory (judgement n° 116/2015). The Court maintained nevertheless the effects of this regime until 31 December 2017 at the latest.

The Act of 26 December 2013 concerning the introduction of a unified status for blue-collar and white-collar workers (hereinafter the USA) provides for a derogation regime for blue-collar workers in the construction sector who are carrying out certain activities in so-called temporary and mobile places. These blue-collar workers were excluded from the new regime of harmonized notice periods, being still subject to shorter notice periods. In its opinion on the preliminary draft of the USA, the Council of State already expressed a serious reservation regarding this derogation regime for indefinite time.

During the preparatory works, these shorter notice periods were justified by the desire to maintain for these workers the social protection of an employment contract for an indefinite duration.

The Constitutional Court considered that this purpose was not sufficient to justify a permanent difference in the notice periods. The Court held that the derogation regime for blue-collar workers in the construction sector occupied in temporary and mobile places was discriminatory. The permanent derogation regime is thus annulled. The provision of the USA which excludes from the scope of application of the compensation in lieu of notice the blue-collar workers covered by the derogation regime as regards the notice periods is also annulled.

Nevertheless, the Constitutional Court decided to maintain the effects of the annulled provisions until 31 December 2017 at the latest. According to the Court, the immediate annulation of the provisions would result in significant legal uncertainty and could lead to severe financial difficulties for many employers.