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Justifying the dismissal of blue-collar workers by facts that do not fall within the strict framework of the execution of their employment contract

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Data protection and privacy
Termination of employment

Judgment of the Belgian Supreme Court of 22 October 2012

In order to exclude the possibility that the dismissal of a blue-collar worker could be judged unfair, the employer does not necessarily need to justify the dismissal by facts which occurred during the execution of the employment contract.

According to article 63 of the Employment Contracts Act of 3 July 1978, when a dismissed blue-collar worker invokes the unfair aspect of his/her dismissal, it is up to the employer to prove that the grounds on which the dismissal is based are related to the ability or the behaviour of the blue-collar worker or are based on the operational requirements of the company, the establishment or the service, and that these grounds are at the starting point of the dismissal.

The Belgian Supreme Court pronounced a judgment on 22 October regarding the proof that the employer has to provide to exclude the unfair aspect of the dismissal of the blue-collar worker.

According to the Court, when an employer dismisses a blue-collar worker and wishes to be able to contest any claim that such dismissal is unfair, article 63 of the Act of 3 July 1978 does not limit the employer to citing grounds for dismissal that are limited to the strict framework of their contractual relations.

This means that the employer can also justify the dismissal of a blue-collar worker by furnishing proof of his/her inappropriate behaviour that occurred outside the framework of the employment contract, for example within the framework of his/her private life or his/her prior occupation.

> Action point

An employer who wishes to dismiss a blue-collar worker should be certain to motivate properly and accurately the dismissal on the basis of evidence in order to avoid proceedings to secure payment of compensation for unfair dismissal. When the grounds are related to the conduct or the behaviour of the blue-collar worker, this behaviour or conduct does not, however, necessarily have to have occurred during the execution of the employment contract.