Modification of the notice period in case of resignation by the employee
On 16 March 2023, the House of Representatives adopted a law which modifies the calculation of notice periods for certain employees whose employment contract started before 1 January 2014. The changes specifically concern the situation in which the employee resigns.
At the end of 2013, the Single Status Act was approved. One of the main points of this law was the harmonisation of the notice periods for blue- and white-collar employees. Since then, the law stipulates identical notice periods regardless of the employee’s status. The law also provides for a transitional arrangement for employees whose employment contract started before the law entered into force on 1 January 2014.
For these employees, the applicable notice periods are calculated based on the so-called “double photo rule”. In particular, the notice period is calculated by adding two parts:
- the first part concerns the notice period calculated based on the legal, regulatory and conventional rules in force on 31 December 2013, taking into account seniority acquired on that date;
- the second part concerns the notice period calculated on the basis of the ‘new’ notice periods introduced by the Single Status Act, taking into account seniority acquired as of 1 January 2014.
However, the Single Status Act provides specific rules for so-called “superior white-collar employees”, i.e., employees with an annual salary exceeding EUR 32,254 gross on 31 December 2013, and in particular specific rules for calculating the first part of the notice period. In case of dismissal by the employer, the first part of the notice period for these employees is one month per started year of seniority, with a minimum of 3 months. In case of departure by the employee himself, the first part of the notice period is set at 1.5 months per started period of five years of seniority with a maximum of 4.5 months if the annual salary did not exceed EUR 64,508 on 31 December 2013, or a maximum of 6 months if the annual salary did exceed EUR 64,508 on 31 December 2013.
However, these rules are changed by the law now passed on 16 March 2023, at least as far as the situation where the employee resigns himself is concerned.
In this situation, the law abolishes the calculation of the notice period in two parts. Consequently, from the entry into force of the new law, the notice period of an employee who resigns will be calculated solely on the basis of the notice periods introduced by the Single Status Act and provided for in Article 37/2, §2 of the Employment Contracts Act of 3 July 1978. This will have to take into account the employee’s entire seniority with the employer, but without applying the “double photo rule”.
This means that the notice period for employees who resign will be capped at 13 weeks in any case, as this is the maximum notice period provided for in the aforementioned Article 37/2, §2. This ceiling is reached from a seniority of 8 years. The 13-week ceiling will therefore also start to apply to all employment contracts that started before 1 January 2014.
The legislative amendments have two objectives: on the one hand, to limit the notice period in case of resignation by the employee to 13 weeks, and on the other hand, to abolish the specific provisions for “superior” white-collar employees, which would violate the principle of equality.
The Act was published today in the Belgian State Gazette. However, the Act will only enter into force six months following the publication in the Belgian State Gazette, i.e. on 28 October 2023. Moreover, it is expressly stipulated that terminations served before the entry into force of the law will continue to have all their effects.
Key message
It is advisable – once the law has effectively entered into force – to check the calculation of the notice period that the employee must respect in case he terminates the employment contract himself. Indeed, new rules will apply from then on, no longer applying the “double photo rule”.