Seniority in the public sector: the Constitutional Court clarifies

In an answer to a prejudicial question of the Brussels Labour Court, the Constitutional Court decided in a decision of 12 May 2010 that, for the determination of the seniority to calculate the notice period, not only the periods worked in the framework of an employment contract must be taken into account, but also the periods worked previously with the same employer under a (public law) statute (decision no. 54/2010).

According to the Constitutional Court, it does not appear that the situation of an employee who has built up part of his seniority with his employer as a public official/statutory member of staff, is different from the situation of an employee who has built up his seniority exclusively in the framework of an employment contract.  Indeed, an employee who has built up his seniority partly as a statutory member of staff, does not have a greater chance to find a new, equal function than an employee who was exclusively employed in the framework of an employment contract.

Furthermore, the Constitutional Court also made reference to the fact that the legislator had wanted to reward the loyalty of an employee by taking into consideration the seniority that was built up with his employer for the calculation of the notice period.  In this respect, the Constitutional Court is of the opinion that the loyalty of the employee to the same employer must be equally rewarded when the employee has worked partly under a (public law) statute.