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Headline Labour & Employment: New dismissal rules as of 2012: adapt your work rules and standard employment contracts

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As of 1 January 2012 new notice periods apply in case of termination of employment contracts which have entered into effect as of that date. In the standard documents that many employers use, reference is only made to the previous dismissal rules (which continue to apply for contracts which have entered into force before 2012). We recommend examining these documents in detail. Special attention should be paid to the work rules.

In our Client Memo of 18 November 2011, we explained that new notice periods apply as of 1 January 2012. Generally, the notice periods for white-collar workers who start(ed) working in the company as of 1 January 2012 will be shorter. Blue-collar workers who start(ed) working as of 1 January 2012, will be entitled to a slightly longer notice period. For blue-collar and white-collar workers who entered into service with your company before 2012, the duration of the notice period hasn’t changed.

Many standard employment contracts contain a clause regarding the termination of the employment contract. If this clause only states that the “legal provisions” will apply in case of dismissal, there is no problem. If, however, reference is made to specific legal provisions, this reference will have to be changed before offering an employment contract to a new employee. The new dismissal rules are mentioned in the articles 86/1 to 86/4 (for white-collar workers) and 65/1 to 65/4 (for blue-collar workers) of the Employment Contracts Act.

Further, and this is even more important than the updating of the standard employment contracts, the work rules have to be adapted. According to the Work Rules Act, the work rules must mention “the duration of the notice periods or the rules for determining the notice periods or the reference to the relevant legal and regulatory provisions”. Non-compliance with the Work Rules Act can result in administrative fines or criminal penalties.

As the work rules apply to all employees irrespective of whether the execution of their employment contract began before or after 1 January 2012, we advise to make a clear distinction between the different categories in the work rules when indicating the notice periods. In the work rules the (1) references to legal provisions or (2) the descriptions of the applicable dismissal rules which apply to each category can be listed. If the company employs both white-collar workers and blue-collar workers, each of the categories can be further subdivided.

The employer can make these changes without having to follow the formalistic rules concerning the consultation of the Works Council or the posting-up of the work rules. The new version of the work rules must be communicated to the employees. Moreover, the employer must send a copy of the work rules to the social inspectorate within 8 days following the modification.