Protected employees and the 2012 Social Elections

A sole candidate also enjoys protection against dismissal

The Supreme Court has again handed down a judgment from which it is clear that the combination of on the one hand protected employees and on the other hand social elections is still giving rise to disputes.

The law requires for instance that, at all times, at least two employee representatives have to be seated in the Works Council and/or the Committee for Prevention and Protection at Work. This is also the reason why an employer can stop the election procedure in his undertaking (TOU) if only one candidate is proposed. In a recently published judgment of 4 April 2011, the Supreme Court gave its opinion about the scope of the dismissal protection of such an employee who was the sole candidate for the social elections.

In this judgment the Court clarified that, in this case, the employee concerned is not considered to be effectively chosen and therefore only enjoys a protection as a candidate employee representative (during four years). This also means that, if a similar scenario would repeat itself during the next social elections, the employee concerned would not be elected twice and would therefore be protected at the second social elections for a duration of two years (instead of four years).

In this context, we also wish to remind you that the so-called "hidden protection period" for the candidates at the 2012 social elections already starts on X-30. In function of your election calendar, this period therefore starts between 8 and 21 January 2012.

We will, of course, keep you posted about further developments and the range of services that Claeys & Engels offers you in the framework of the 2012 social elections. In this regard, we can already tell you that we expect the Parliamentary bill concerning the forthcoming social elections to be published in the near future.