Het Grondwettelijk Hof spreekt zich uit over het lot van een opzeggingsclausule gesloten vóór 1 januari 2014 Constitutional Court addresses the issue of notice provisions concluded before 1-1-2014

The Constitutional Court judges that a notice provision which was concluded before 1 January 2014 with a "higher white collar employee" has to be applied to determine the notice period for "step 1" (compensation for seniority up to 31 December 2013). In doing so, the Constitutional Court brings some clarity to a topic which has led to varying case law in the past.

In the case which has led to the prejudicial question to the Constitutional Court, a notice provision was included in an employment contract concluded before 1 January 2014. The employee concerned was a "higher white collar employee" who earned more than EUR 32,254 on 31 December 2013. The employment contract was terminated after 1 January 2014 by the employer. The question was whether the notice provision had to be applied for the calculation of the notice period for "step 1" (compensation for seniority up to 31 December 2013), or whether the statutory rule for "higher employees" had to be respected for "step 1" (i.e. one month per started year of seniority, with a minimum of three months), as is clearly stated in the WES.

In a judgment of 18 October 2018, the Constitutional Court judges that - as is the case for other employees - the notice provision also has to be applied for "higher employees" to determine the notice period for "step 1". If a valid notice provision was concluded, the statutory rule of one month per started year of seniority (with a minimum of three months) can thus not be taken into account.

As a reminder, also for employment contracts which have started as of 1 January 2014, notice periods derogating from the fixed statutory notice periods which apply since 1 January 2014 can be agreed upon. This is conditional upon the derogation being advantageous for the employee. Moreover, the derogation cannot be fixed at the sectoral (or sub-sectoral) level. More information on the general rules which apply as of 1 January 2014 can be found in our newsletter of May 2018.

> Action point

Take into account the valid notice provisions which were concluded before 1 January 2014 for the so-called "higher employees", at least for "step 1" (notice period compensating seniority accrued up to 31 December 2013).