If you have resumed your social elections procedure in the meantime by posting the adapted candidate lists on day X+29, your next procedural step is the posting of the submitted candidate lists on day X+40 (which falls in the period from 27 September up to and including 10 October 2020, depending on your new election date). From that time onwards, strict deadlines apply for filing a complaint or starting judicial proceedings against a candidacy. In some cases, the trade union organisations can put forward a replacement. We list these important dates below.
Posting of the candidate lists on day X+40
At the latest on day X+40 (which falls in the period from 27 September up to and including 10 October 2020), the employer must post the received candidate lists, without making any modification. The posting must happen in the same place as the posting on your original day X (on paper or electronically if all employees have access to it during the normal working hours).
Withdrawal of candidacies or internal complaints against candidacies
At the latest on day X+47 (which falls in the period from 4 up to and including 17 October 2020), the voters or the trade union organisations can file a complaint with the employer. This deadline also applies when a candidate wants to withdraw his candidacy. The employer must pass on the complaint or withdrawal to the organisation concerned on day X+48. In the case of a complaint, the trade union organisation has a period of six days (so, up to and including day X+54) to modify the list. At the latest on day X+56 (which falls in the period from 13 up to and including 26 October 2020), the employer must re-post the candidate lists, even though they have not been modified.
In a limited number of cases, the trade union organisations can also put forward a replacement at the latest on day X+76 (which falls in the period from 2 up to and including 15 November 2020), for instance when a candidate has withdrawn or has left the company in the meantime. The employer must re-post the candidate lists on day X+77, even though they have not been modified.
Appeal against a candidacy before the labour tribunal
The candidacies can also be contested before the labour tribunal. The Act makes a distinction between two possible time limits. The decisive factor is whether or not a complaint has been filed on day X+47:
- If no complaint was filed, only the employer may start judicial proceedings before the labour tribunal. This must be done at the latest on day X+52 (which falls in the period from 9 up to and including 22 October 2020).
- If a complaint was filed, the voters and trade union organisations can start judicial proceedings before the labour tribunal against the nomination of the candidates against whom a complaint was filed in time. The appeal must be lodged at the latest on day X+61 (which falls in the period from 18 up to and including 31 October 2020). If a complaint was filed, the time limit for the employer to lodge an appeal also only expires on day X+61.
As an employer, you can contest a candidacy because of the eligibility conditions or because you think that there was an abuse of law on the part of the candidate. It is important to comply with these time limits, since you cannot contest a candidacy later on.
Assessment of the eligibility conditions
The statutory eligibility conditions (e.g., seniority, age, etc.) must be met on the date of your original day Y. This applies to the original candidates as well as to their replacements.
Hidden protection against dismissal for the replacement candidates
As regards the replacement candidates, you must also take into account the “hidden protection period” running since the new day X (which falls in the period from 18 up to and including 31 August 2020) up to and including your new day X+76 (which falls in the period from 2 up to and including 15 November 2020).
Check whether your candidates and candidate lists meet the statutory conditions and closely follow up the strict time limits for posting, challenging, etc.