Public sector
Individual employment

In its judgment of 23 March 2023, the Constitutional Court confirmed that it is not discriminatory to provide special dismissal protection for contractual staff who execute (or were candidate for) a union mandate and not for statutory staff. 

The Court considers that statutory staff and statutory staff-trainees already enjoy extensive dismissal protection.

The facts forming the basis of this preliminary question concern the dismissal of a statutory commercial employee-trainee at HR Rail, which is the employer of all staff of the Belgian Railways. This employee had challenged his dismissal before the Council of State. He argued that, as a statutory worker, he should also have been entitled to the special dismissal scheme for (candidate) trade union representatives, just like his contractual colleagues.

At the request of the statutory worker, a preliminary question was referred by the Council of State to the Constitutional Court, namely whether Articles 10 and 11 of the Constitution are violated to the extent that the Act of 18 March 2018 “amending the Act of 23 July 1926 on the SNCB and the staff of Belgian Railways and to the Judicial Code on social elections for certain bodies of social dialogue of Belgian Railways” (“Law of 18 March 2018”) prescribes special dismissal protection for contractual employees who were candidates in the social elections and not for statutory workers.

Articles 19 to 22 of the Law of 18 March 2018 stipulate that contractual union representatives and prospective union representatives can only be dismissed for a serious cause previously accepted by the labour court, or for economic reasons previously recognised by the National Joint Committee by two thirds of the votes cast.

The articles thus prescribe a special dismissal protection similar to the dismissal protection in the private sector, as provided by the law of 19 March 1991 “containing special dismissal regulations for employee representatives in works councils and in committees for safety, health and embellishment of workplaces as well as for candidate employee representatives”.

The Constitutional Court posed the decisive question as to whether all workers (both statutory and contractual) who were elected or stood for election in social elections were sufficiently protected against dismissal so that social dialogue was guaranteed at all times.

The Court noted that the termination of a public service employment is indeed different depending on whether the staff member was employed on a contractual or statutory basis. For the contractual workers of HR Rail there is a specific protection against dismissal resulting from the candidacy for the social elections. However, the statutory worker (as well as the statutory trainee worker) is subject to a different strict dismissal regime as his employment can only be terminated on grounds expressly provided for in his/her statute. For this reason, the court ruled that the job of statutory workers was guaranteed in any case, as they are also subject to a strict dismissal regime.

Since all statutory workers and statutory worker-trainees already enjoy extensive dismissal protection, it was held that the difference in treatment is based on an objective criterion (namely, the legal nature of the employment relationship), and statutory workers from HR Rail are validly excluded from the special dismissal protection prescribed by the Act of 18 March 2018.

Action point

Contractual employees at HR Rail who are candidates for social elections enjoy special dismissal protection. They can only be dismissed for reasons previously approved by the labour court or the National Joint Committee. Statutory workers do not enjoy this special protection as they already enjoy the protection inherent in their status. This difference in treatment has now also been deemed valid by the Constitutional Court.

The Constitutional Court only ruled on the special dismissal protection at HR Rail. However, be mindful that within the public sector, more generally, dismissal protection can also apply to employee representatives. This is prescribed by the “Royal Decree of 28 September 1984 implementing the Act of 19 December 1974 regulating relations between the government and the trade unions of its staff”.