Individual Dismissals Across Europe

Transcription

1 Individual Dismissals Across Europe

2 A Ius Laboris publication Produced by the Individual Employment Rights International Practice Group 2nd Edition Printed: November 2011 Nothing stated in this book should be treated as an authoritative statement of the law on any particular aspect or in any specific case. Action should not be taken on the basis of this text alone. For specific advice on any matter you should consult the relevant country representative listed inside. The law is stated as at July Is a registered trademark of Ius Laboris scrl

3 Individual Dismissals Across Europe

4 is an alliance of leading Human Resources law practitioners. We have more than 2,500 lawyers providing local expertise across the globe, with member firms in over 40 countries and coverage in more than 100 jurisdictions. Human Resources challenges need local expertise within a global framework. The complexities of national employment law demand it and the Ius Laboris members provide it. In today s global marketplace, businesses increasingly operate on a regional or international scale. Companies that coordinate their employees across multiple jurisdictions must comply with the rules and regulations governing employment, labour, pensions, and immigration law in each of those jurisdictions. As a result retaining legal experts with knowledge and experience in both international and local Human Resources law is essential for businesses of all sizes. Each of our members must be a top-ranking Human Resources or Pensions law firm in their respective locality to be invited to join Ius Laboris. We welcome into our Alliance only firms that possess focused expertise in all disciplines of Labour, Employment and Pensions law. Our lawyers understand the issues and challenges associated with managing a workforce, wherever it is located.

5 The Alliance focuses on specific areas of expertise within our eight International Practice Groups (IPGs). The IPGs bring together lawyers from across the Alliance with expertise in key areas of Human Resources law including Individual Employment Rights, Discrimination, Restructuring and Labour Relations, Pensions, Employee Benefits and Tax, Data Privacy, Occupational Health & Safety and Global Mobility In our experience, local expertise in these areas of law is crucial to developing coherent Human Resources strategies that work within a global framework. Our IPGs meet regularly and are well placed to coordinate regional and worldwide requests, drawing on each individual lawyer s wealth of experience. Clients can access the work of our IPGs, which complement our extensive portfolio of legal services. The Individual Employment Rights IPG brings together lawyers from across the Alliance with expertise on the unique issues that arise at different stages in the employer-employee relationship. Members of this practice group advise clients on a range of issues from structuring employment contracts, identifying and implementing alternative working week arrangements, creating and implementing performance management plans, staff training, creating cross-border employment policies, terminations and settlement agreements, labour audits and due diligence inquiries for corporate transactions. For any additional information, please visit our website ( or feel free to contact us: Ius Laboris 280 Boulevard du Souverain B-1160 Brussels, Belgium Tel Fax info@iuslaboris.com Contributors AUSTRIA Natalie Seitz Kunz Schima Wallentin Porzellangasse Vienna Austria T F E natalie.seitz@ksw.at BELGIUM Ann Witters Claeys & Engels Generaal Lemanstraat Antwerp Belgium T F E ann.witters@claeysengels.be CYPRUS Natasa Aplikiotou Sarah Forster George Z Georgiou & Associates LLC 1st Floor, 1 Eras Street 1060 Nicosia Cyprus T F E natasa.aplikiotou@gzg.com.cy sarah.forster@gzg.com.cy CZECH REPUBLIC Natasa Randlová Randl Partners City Tower Hvezdova 1716/2b Prague 4 Czech Republic T F E randlova@randls.com DENMARK Morten Langer Jens Harkov Hansen Norrbom Vinding Amerikakaj Dampfaergevej Copenhagen Denmark T F E mortenlanger@norrbomvinding.com jhh@norrbomvinding.com ESTONIA Sven Papp Kadri Michelson Raidla Lejins & Norcous Roosikrantsi Tallinn Estonia T F E sven.papp@rln.ee kadri.michelson@rln.ee

6 FINLAND Seppo Havia Dittmar & Indrenius Pohjoisesplanadi 25 A Helsinki Finland T F E seppo.havia@dittmar.fi GREECE Alexia Stratou Kremalis Law Firm 35 Kyrillou Loukareos Athens Greece T F E astratou@kremalis.gr LUXEMBOURG Alexandra Castegnaro Castegnaro 33, Allée Scheffer 2520 Luxembourg Luxembourg T F E alexandra.castegnaro@castegnaro.lu POLAND Grzegorz Ruszczyk Raczkowski i Wspólnicy sp.k. ul. Ciasna Warsaw Poland T F E grzegorz.ruszczyk@raczkowski.eu FRANCE Laurent Deschaud Coralie Renaud Capstan 509 avenue du Prado Marseille France T F E ldeschaud@capstan.fr crenaud@capstan.fr GERMANY Christoph Crisolli Sandra Könemann Kliemt & Vollstädt Ulmenstrasse Frankfurt am Main Germany T F E christoph.crisolli@kliemt.de sandra.koenemann@kliemt.de IRELAND Aoife Bradley LK Shields Solicitors 39/40 Upper Mount Street Dublin 2 Ireland T F E abradley@lkshields.ie ITALY Aldo Bottini Lea Rossi Toffoletto e Soci Via Rovello, Milan Italy T F E sab@toffoletto.it NETHERLANDS Erik Deur Myra Dickhoff Bronsgeest Deur Advocaten De Lairessestraat HJ Amsterdam Netherlands T F E e.deur@bd-advocaten.nl m.dickhoff@bd-advocaten.nl NORWAY Amund Fougner Therese Høyer Grimstad Advokatfirmaet Hjort DA Akersgaten 51 P.O.Box 471 Sentrum 0105 Oslo Norway T F E af@hjort.no thg@hjort.no PORTUGAL Bruno Barbosa pbbr.a Av. Liberdade, 110, 6º Lisboa Portugal T F E bruno.barbosa@pbbr.pt RUSSIA Olga Pimanova Law Firm ALRUD 2nd floor 17 Skakovaya Street Moscow Russia T F E opimanova@alrud.ru

7 SPAIN José María Carpena Sagardoy Abogados C/Tutor Madrid Spain T F E jcn@sagardoy.com SWEDEN Ulrika Runelöv Caroline Lagergréen Elmzell Advokatbyrå AB Gamla Brogatan Stockholm Sweden T F E ulrika.runelov@elmzell.se caroline.lagergreen@elmzell.se SWITZERLAND Marc-Philippe Prinz Lenz & Staehelin Bleicherweg Zurich Switzerland T F E marc-philippe.prinz@lenzstaehelin.com TURKEY Pelin Tirtil Batuhan Sahmay Bener Law Office Yapi Kredi Plaza, C blok, Kat Levent Istanbul Turkey T F E pelin.tirtil@bener.av.tr batuhan.sahmay@bener.av.tr UNITED KINGDOM Ellen Temperton Hannah Price Lewis Silkin LLP 5 Chancery Lane Clifford's Inn London EC4A 1BL England T F E ellen.temperton@lewissilkin.com hannah.price@lewissilkin.com EDITOR Deborah Ishihara Ishihara & Co Limited writing editing proof reading London England T F E deborah@ishihara.co.uk

8 Contents INTRODUCTION 13 AUSTRIA 15 BELGIUM 31 CYPRUS 47 CZECH REPUBLIC 57 DENMARK 73 ESTONIA 85 FINLAND 97 FRANCE 109 GERMANY 119 GREECE 132 IRELAND 147 ITALY 161 LUXEMBOURG 173 NETHERLANDS 191 NORWAY 207 POLAND 221 PORTUGAL 233 RUSSIA 243 SPAIN 257 SWEDEN 269 SWITZERLAND 283 TURKEY 295 UNITED KINGDOM 309

9 INTRODUCTION Introduction In order to successfully establish operations and manage human resources abroad, globalisation increasingly requires international employers to understand and consider specific aspects of various national legal systems and economies. Accordingly, management personnel and human resources directors are called upon to consider foreign legal provisions in their daily work. On behalf of Ius Laboris, the alliance of leading Human Resources law practitioners, we are delighted to introduce the second edition of Individual Dismissals Across Europe with updates on legislative changes and developments. This publication explains the essential principles of individual dismissals in numerous European countries and outlines each country s respective system for protection against dismissal, prior warnings, notice periods, the selection of employees to dismiss, collective requirements, administrative approvals and the legal impacts of such dismissals. Its purpose is to give executives and consultants a comprehensive overview of the national system without assuming prior knowledge of the subject on the reader s part. All authors are lawyers from across the Alliance and have extensive practical experience in advising international clients on labour and employment law. We would like to express our appreciation to all member firms for their contributions and knowledge-sharing. For further information on the law in any given state, please contact the relevant Ius Laboris member firm listed above or: Christoph Crisolli (Kliemt & Vollstädt, Germany) Erik Deur (Bronsgeest Deur Advocaten, Netherlands) Co-Chairs of the Individual Employment Rights International Practice Group 13

10 1. GENERAL PROTECTION SPECIAL CONSIDERATIONS Discrimination Age Length of service and fixed-term contracts Part-time work and career breaks Pregnancy and child care Carers Employee representatives Redundancy Other RESIGNATION AVOIDING UNFAIR DISMISSAL Grounds for dismissal Permissions Procedures Notification/consultation obligations Duration of notice period Treatment during notice period Payment in lieu of notice Other 26 Austria 5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED SANCTIONS AND ENFORCEMENT Sanctions for unlawful dismissal Void dismissals Reinstatement WAIVER OF RIGHT TO SUE 29

11 Individual Dismissals Across Europe - AUSTRIA 1. GENERAL PROTECTION In Austria, a comprehensive system of regulations on protection against dismissal exists, not only concerning the general protection of employees but also the specific protection of certain groups. General protection against dismissal comes from s105 of the Labour Constitution Act (the LCA ). Special protection against dismissal is based on a number of laws applicable to certain groups of employees. The provisions regarding periods of notice are contained in s20 of the Employees Act, s77 of the Business Code 1859, and s1159(ff) of the Austrian Civil Code ( Allgemeines Bürgerliches Gesetzbuch, the ABGB ). The legal provisions on protection against ordinary termination include procedural rules and provide for the mandatory involvement of the works council. If no works council has been elected, the rules involving the works council do not apply, but the remaining provisions are still applicable. In addition to the statutory provisions, protection against dismissal is also typically regulated in collective agreements. Collective agreements cover most employment in Austria and vary a great deal in how they regulate the termination of employment relationships. General protection against dismissal protects all employees against: dismissals for inadmissible reasons socially unjustified dismissals. Employees are also protected against dismissals that are: contrary to public policy in breach of mandatory legal rules. In all establishments in which at least five employees are regularly employed, all employees are entitled to some protection against ordinary termination. In general, an employee (or the works council) may contest a termination by lodging a complaint with the labour court. If the case is upheld, the termination will be set aside and the employee will be reinstated and entitled to back pay for the duration of the procedure. The general provisions provided by the LCA do not apply to the statutory agents of a company (e.g. the members of a board of directors or the managing directors of a private limited company), nor do they apply to executive staff who manage a company. Employees of very small compasinies (i.e. those with fewer than five employees) are also exempt from the general protection against dismissal. 17

12 Individual Dismissals Across Europe - AUSTRIA 2. SPECIAL CONSIDERATIONS 2.1 Discrimination Disabled employees are protected if they have been working for at least four years with the employer. To qualify for this protection the degree of disability must be officially determined as equal or exceeding 50% of full ability. Employees with official disabled status are not impossible to dismiss but they do have special protection against dismissal once they have been employed for four years (see section 4.2). Disabled employees are also protected against discrimination. 2.2 Age Male employees born between the years 1935 and 1942, and female employees born between the years 1940 and 1947, are granted individual special protection against unfair dismissal in the Adjustment of Employment Contracts Act. 2.3 Length of service and fixed-term contracts Employees with fixed-term contracts can be dismissed only if the possibility of termination was expressly agreed upon. The general and the special protections need not be taken into consideration when the fixed term ends, but must be taken into consideration if a dismissal is to be made before the agreed time of its expiry. Note that, during a probationary period, which may last up to one month (s19, paragraph 2 of the Employees Act and s1158, paragraph 2 of the Austrian Civil Code), employment can be terminated at will at any time. Apprentices have a particularly strong interest in maintaining their apprenticeship contracts, which is why they have an extended probationary period and can be terminated during only the first three months (at any time). After the probationary period, apprentices can no longer be dismissed without cause or exceptional circumstances. Upon the termination of an apprenticeship, an employer must continue to employ the apprentice for three months (the required period of retention). A (summary) termination of the apprenticeship is allowed only for reasons contained in the exhaustive list provided by law. It must be in written form and must be agreed to by the apprentice s legal guardians. 2.4 Part-time work and career breaks There is no special protection for employees working part time (for career breaks please see points 2.5 and 2.6) Pregnancy and child care Pregnant employees and those taking full- or part-time parental leave are protected. Protection against dismissal for mothers ends, at the earliest, four months after the child is born. However, if the employee goes on full- or part-time maternity leave, then the special protection ends four weeks after the maternity leave (see section 4.2). 2.6 Carers Employees on compassionate leave for the care of dying family members and/or the care of seriously ill children cannot in principle be dismissed (see section 4.2). 2.7 Employee representatives Members of the works council or employees who are preparing to be a candidate for a position on the works council enjoy special protection against ordinary as well as immediate termination (see section 4.2). 2.8 Redundancy An employer that intends to dismiss a large number of employees within a 30- day period must send written notification to the relevant local Employment Service (s45(a) Arbeitsmarktförderungsgesetz, the AMFG ) before proceeding with the first dismissal. The notification and consultation obligations in relation to the local Employment Service apply when an employer intends to dismiss: Number of employees to be dismissed At least 5 employees At least 5% of the employees At least 30 employees At least 5 employees aged 50 or over Company size More than 20 and fewer than 100 employees More than 600 employees Over 600 employees Irrespective of company size 2.9 Other Employees fulfilling compulsory military or alternative community service are also specially protected against dismissal (see section 4.2). Employees living in a company-owned residence in the course of employment as a concierge ( Hausbesorger ) enjoy special protection against dismissals. Employees employed by a corporation under public law (in contrast to career public servants, who have permanent tenure), enjoy special protection against dismissal. 19

13 Individual Dismissals Across Europe - AUSTRIA 3. RESIGNATION Generally, a resignation cannot be regarded as a dismissal. However, the resignation of a member of a board of directors may be considered as a dismissal in certain cases. 4. AVOIDING UNFAIR DISMISSAL 4.1 Grounds for dismissal In Austria, as a matter of principle, an employer need not name the grounds for a dismissal. Dismissals are only subject to periods of notice and termination dates. The contractual parties are, however, restricted in their freedom by the general provisions on protection against dismissal. For example, if an employee or works council contests a dismissal, and it is reviewed by a court of law, then the employer must prove or substantiate the grounds for the dismissal. The employees listed in section 2 above can only be dismissed if the appropriate court or authority permits the dismissal and there must be a substantial reason for dismissal. Without judicial or official permission, the dismissal is void. The following are examples of dismissals for inadmissible reasons: An employee makes a (not unjustified) claim on the basis of the employment relationship. An employee is a safety officer, a member of a works council or a member of an arbitration board (or is preparing to be a member of an arbitration board). An employee is soon to be called up for compulsory military or alternative community service. An employee joins a trade union or is or becomes active in one. the reasons for dismissal are in violation of the Equal Treatment Act. An employee left an area of danger or took action to prevent danger. Please note that during the first six months of employment within a company, dismissals can only be contested on the grounds that they are for inadmissible reasons. A dismissal is classified as socially unjustified when it impacts adversely on the interests of the employee. To evaluate this, the whole of the employee's circumstances must be taken into account (e.g. the ratio of regular income to expenses; the reduction in income caused by loss of employment; and the chances of finding a new job in the job market). A dismissal that has a negative impact on an employee's interests can, however, be justified by reference to other subjective factors (e.g. a breach of duty, frequent sick leave, or below-standard performance). It can also be justified by objective factors (e.g. termination for business reasons, such as when an organisation experiences a sales slump, downsizes, shuts down or is re-organised). An employee can claim that the employer has not fulfilled its social duty, for example, because it ought to have offered the employee a reasonably acceptable reassignment within the business. If the dismissed employee believes that the dismissal will cause him or her greater hardship than it would for comparable employees who work in the same business and have the same job, then a social comparison must be undertaken. However, the employee can demand a social comparison only if the works council has expressly objected to the dismissal. Unlawful dismissals or dismissals that are contrary to public policy are void, in accordance with the general provisions of civil law (s879 of the Austrian Civil Code). An employer may therefore not dismiss an employee (only) in order to inflict harm on him or her (i.e. unless its interest in ending the employment contract carries real weight). 4.2 Permissions Employees with the official status of being disabled are not impossible to dismiss but they do have special protection against dismissal once they have been employed for four years. If an employer wants to dismiss a disabled employee, then it must seek permission in advance from the Committee for the Disabled of the Federal Welfare and Disabled Persons Agency. Permission requested from the Agency subsequent to the dismissal is granted only in very exceptional cases. Pregnant women, mothers and fathers on full- or part-time parental leave also enjoy special protection against dismissal. The dismissal of protected parents is only possible if permission from the Court is attained in advance, and is only possible for the reasons listed in law (e.g. a plant closure)

14 Individual Dismissals Across Europe - AUSTRIA In principle, employees who are on compassionate leave (for the care of dying close family members and/or the care of seriously ill children) cannot be dismissed. Only in certain exceptional cases may the Labour and Social Security Court give permission for the employment contract to be terminated. If an employer wants to dismiss a works council member, it must file an action before the Labour and Social Security Court to request permission in advance. The Court may grant permission only if: the works council member s further employment would result in substantial damage (e.g. in the case of downsizing or the closing down of business) the works council member is incapable of working the reason is the works council member s behaviour (persistent breach of duty). Permission can also be granted if (serious) grounds for summary dismissal exist. Young men who fulfil their compulsory military or alternative community service obligations are also specially protected against dismissal. In principle, they cannot be dismissed during compulsory service, unless the Labour and Social Security Court gives permission in advance. 4.3 Procedures There is no requirement to observe any particular legal form of dismissal. It can be expressed verbally or in writing. The employer must first notify the works council of the intended termination. The works council may then comment on the termination (i.e. approve of, acquiesce or object to it) within one week. An employer can only give notice of termination after receiving the works council s statement of position or upon lapse of the one-week period following notification to the works council. A violation of the pre-notification requirement makes any termination void (see section 4.4 below). The notice of termination must be issued within a few days following the works council s statement of position, and as a basic principle, it should expressly state the earliest possible termination date. The employee or the works council can contest the dismissal as being unfair or socially unjustified. The employee must do so within two weeks and the works council within one week of being informed of the notice of termination. Alternatively, the employee must do so within two weeks and the works council within one week of the notice being delivered. 22 The dismissal need not be accepted but only received, which means that it must be received in the employee s area of influence. The dismissal of an employee while he or she is on sick leave is permissible and in principle valid. A dismissal that is delivered to an employee while he or she is on holiday is permissible, but only where there is a commensurately long period of notice (six weeks or longer). 4.4 Notification/consultation obligations An employer must notify the works council before it declares an employment contract to be terminated. This notification need not take any particular form, but it should be in written form to serve as evidence. Within the next working week the works council may then offer its comment on the planned dismissal (the preliminary procedure ). The three phases of this preliminary procedure are: notification of the works council consultation between the works council and the organisation s owner(s) works council s statement of position. The dismissal is void if no notification takes place, but there are no sanctions if the consultation does not take place. In the consultation, the works council must pay particular attention to social fairness in the choice of which employees are to be dismissed. If there is no works council, then the preliminary procedure is omitted. Within one working week following the employer s notice, the works council has the option of making a statement of position regarding the employer s intention to dismiss an employee. Dismissals that take place within this week are void, unless the works council had already submitted a statement of position. The works council can oppose the dismissal, assent to it, or make no statement (abstain from comment). Late or unclear statements of position by the works council are regarded as if it made no statement. If the works council declares that it will make no statement, then the employee can be dismissed immediately. The stated intent to make no statement of position must be based on a valid resolution. There must be a two-thirds majority for an assenting position, otherwise there must be a simple majority. The statement of position can be verbal or written, but to serve best as evidence it should be in written form. A faulty resolution procedure within the works council has no effect on the validity of the resolution, unless the faulty procedure was obvious to the employer. 23

15 Individual Dismissals Across Europe - AUSTRIA After notice of termination has been given to an employee, the employer must inform the works council (the second information ). There are no legal provisions stipulating a deadline for this second notification. As mentioned in section 2.8 above, an employer that intends to dismiss a larger number of employees within a 30-day period must send written notification to the relevant local Employment Service (s45(a) Arbeitsmarktförderungsgesetz, the AMFG ) before proceeding with the first dismissal. The Employment Service must be notified at least 30 days before the first dismissal takes place. An employer can apply to be released from this period if, for example, there are important business reasons. If an employer fails to notify the Employment Service, or sends the notification too late, or proceeds with dismissals before the 30 days are over, then all dismissals are considered ineffective, (although the court may make a different finding if an employee challenges the dismissal). Before notifying the Employment Service, the employer must notify and consult with the works council (s109, paragraph 1, clause 1(a) of the LCA and s45(a) of the AMFG). The works council must be notified as soon as possible and in any case early enough for it to be able to consult with the employer regarding the nature of the measures to be taken. In notifying the Employment Service, the employer must show that the works council has been consulted. 4.5 Duration of notice period The period of notice required from the employer depends upon the employee s length of service. Collective agreements and works agreements can provide more favourable provisions than the statutory ones. In the absence of another agreement, the only permissible termination dates are those at the end of a quarter (i.e. 31 March, 30 June, 30 September and 31 December). In relation to white collar employees, if an employee has two years full service, the period of notice for dismissing him or her will be six weeks; if more than two years full service, two months notice will be required; if more than five years full service, three months notice will be required; if more than 15 years full service, four months notice will be required; and if more than 25 years full service, five months notice will be required. In relation to blue collar employees, the general rule is that there is no differentiation in terms of length of service, and the period of notice for a dismissal is two weeks (s77 of the Business Code). However, if an employee s 24 length of service is less than three months or if his or her wages are paid on an hourly or daily basis or by piecework, the period of notice is only one day (s1159 of the Civil Code). If an employee s length of service is more than three months, or when his or her wages are paid on a weekly basis, the period of notice is one week (s1159 of the Civil Code). If the Business Code applies to the employee, then it is considered lex specialis with regard to the Civil Code and supersedes its provisions. For all other blue collar employment contracts, with no differentiation in terms of length of service (i.e. if the Business Code does not apply, e.g. if the employer does not have a trade licence), the period of notice will be 14 days (s1159(b) of the Civil Code). 4.6 Treatment during notice period During the period of notice, reciprocal rights and responsibilities stemming from the employment contract are upheld. Thus, the employee must perform his or her duties and the employer must pay wages or salary. In principle, an employer is permitted to suspend an employee from work during the period of notice (with his or her right to remuneration retained), although it is recommended to include this possibility in the employment contract and/or to offer the employee to take any outstanding annual leave. An employee is entitled to claim so-called job search days. If the employee makes such a claim, the employer must give him or her paid days off in the weekly amount of at least one-fifth of his or her regular weekly working hours. The job search days are optional if the employee was the one to give notice, but they are mandatory if the employer initiated termination. 4.7 Payment in lieu of notice Austrian employment law does not provide for payment in lieu of notice as such. However, if the employer does not observe the relevant provisions regarding the period of notice, the employment contract terminates immediately, although the employee is still entitled to the same financial treatment as if he or she had been dismissed properly under observance of the period of notice. The German word for this is Kündigungsentschädigung meaning dismissal compensation, although it is often translated (in fact incorrectly) as payment in lieu of notice. Compensation is calculated as the amount of regular wages or salary, plus pro rata compensation for holiday and Christmas pay, for the period that should have been the period of notice to which the employee was entitled. 4.8 Other There are no other actions that employers need to take. 25

16 Individual Dismissals Across Europe - AUSTRIA 5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED In principle, employment contracts can only be terminated by either party with immediate effect for good cause (summary dismissal), if the terminating party cannot reasonably be expected to continue the employment relationship until the period of notice expires. As with other dismissals, there are no requirements as to the form that a summary dismissal must take. It can be expressed verbally or in written form. A summary dismissal is justified if it can no longer be reasonably expected that the employer should retain the employee, even for the period of notice. Justified grounds include embezzlement, untrustworthiness and persistent breach of duty. Examples of justified grounds for white collar workers are provided in s27 of the Employees Act. There is an exhaustive list of grounds for blue collar workers in s82 of the Business Code. A summary dismissal must take place promptly, i.e. with no undue delay. If a summary dismissal is justified, the dismissed employee loses any claim to payment in lieu of notice or, if the employee was at fault, to severance pay. The works council must be notified immediately following a summary dismissal and can make a statement of position within three working days, as well as demand consultation. As in the case of a termination with notice, the works council can oppose the dismissal, assent to it, or make no statement (abstain from comment). As regards the right to and the reasons for contesting the dismissal, the procedure is the same as that for claiming general protection against dismissal (the question of socially unjustified dismissal or dismissal for inadmissible reasons). The difference is that the Court must first decide whether the summary dismissal was justified. If the Court's answer is yes, the case for invalidation will be dismissed. If not, the summary dismissal will be reinterpreted as a termination and its justification examined in accordance with the rules for the general protection against dismissal. In the case of specially protected employees such as those who are on parental leave, are pregnant, are on the works council or are disabled, the Court must normally give permission for a summary dismissal to be declared SANCTIONS AND ENFORCEMENT 6.1 Sanctions for unlawful dismissal An employee or the works council can contest a dismissal as socially unjustified or inadmissible. Whether or on what grounds an employee (or works council member) can contest a dismissal depends on the works council s statement of position in the preliminary procedure: If the works council has opposed the dismissal, then it can be fully contested, i.e. it can be contested as both socially unjustified and unfair. It is primarily the works council that has the right to contest, if the employee calls upon it to do so, and it must bring the claim to court within one week of being notified. If the works council was notified before the employer gave notice to the employee, the period begins with the date that the employee received the notice of dismissal. If the works council does not act when called upon by the employee, the employee can contest the dismissal within two weeks after the works council s deadline ends. If the works council assented to the dismissal, then it cannot be contested on the grounds that it is socially unjustified (the works council s right to block ). The employee can contest the dismissal as being inadmissible within two weeks of delivery of notice. If the works council makes no statement (abstains from comment), then the dismissal can be contested as unfair and socially unjustified. The employee can contest the dismissal within two weeks of delivery of notice. If there is no works council in an enterprise, although there are at least five employees and thus a works council was possible, then, within two weeks of delivery of notice, the employee can contest the dismissal as unfair or socially unjustified. If an employee who has been dismissed claims that it was for an inadmissible reason (unfair dismissal), this reason need not be proven, only substantiated. If the dismissal was not declared effectively because, for example, the preliminary procedure was not followed, or the dismissal was unlawful or contrary to public policy then an employee can bring an action for affirmation that the employment contract is still valid (an action for affirmation ). The law mentions no deadline for bringing such an action, but the possible time period in which the employee can make the claim is not unlimited, and the maximum period that is commonly accepted is about six months. 27

17 6.2 Void dismissals A dismissal can be unlawful for many reasons, where: mandatory periods of notice and termination dates were not observed the dismissal occurred for reasons that make it void or contestable: - illegality - being contrary to public policy - being socially unjustified - unfairness. 6.3 Reinstatement If an action for invalidation is allowed, the employment contract is retroactively deemed to continue. The employer must pay the employee his or her outstanding wages or salary (back pay) as well as court costs. The employee, however, must allow sums to be subtracted that he or she either earned or intentionally omitted to earn in the meantime. If the dismissal was not declared effectively because, for example, the preliminary procedure was not followed, or the dismissal was unlawful or contrary to public policy then the dismissal is void. The employment contract is therefore maintained. The employee can bring an action for affirmation. A decision for the action affirms that the employment relationship still continues to exist. The employer must pay the employee his or her outstanding wages or salary (back pay), as well as court costs and compensation for any other harm incurred. The employee, however, must allow sums to be subtracted that he or she either earned or intentionally omitted to earn in the meantime. In Austria, the law differentiates between dismissals that are void and dismissals that are contestable. A dismissal that is void is ineffective in any case, and the employment contract is maintained. A contestable dismissal is effective (and is remedied) if it is not contested by the employee within two weeks or, alternatively, by the works council within one week. 7. WAIVER OF RIGHT TO SUE In principle, the employee is not permitted to waive future claims that he or she would have upon termination (i.e. claims that are not yet actionable by the employee at the time of the waiver), because the employee may only waive claims that have already accrued. 28

18 1. GENERAL PROTECTION SPECIAL CONSIDERATIONS Discrimination Age Length of service and fixed-term contracts Part-time work and career breaks Pregnancy and child care Carers Employee representatives Redundancy Other RESIGNATION AVOIDING UNFAIR DISMISSAL Grounds for dismissal Permissions Procedures Notification/consultation obligations Duration of notice period Treatment during notice period Payment in lieu of notice Other 43 Belgium 5. CIRCUMSTANCES IN WHICH DISMISSAL WITHOUT NOTICE IS PERMITTED SANCTIONS AND ENFORCEMENT Sanctions for unlawful dismissal Void dismissals Reinstatement WAIVER OF RIGHT TO SUE 45

19 Individual Dismissals Across Europe - BELGIUM 1. GENERAL PROTECTION Employment contracts are regulated by the Employment Contracts Act of 3 July Either party can terminate an employment contract for an indefinite period at any time by serving notice, by making a severance payment or in accordance with the procedures set out in the Civil Code. In general, it is not necessary to give any reason for the termination or to obtain any administrative or legal approval. An employment contract for a definite term or a specific task will automatically terminate at the end of the agreed period or at the end of the task. Although there are no general protections against dismissal, certain categories of employees benefit from specific protection. The protection is found in a number of specific laws, royal decrees, and collective bargaining agreements (see section 2 below for an outline of the specific protection). 2. SPECIAL CONSIDERATIONS 2.1 Discrimination By Article 18 of the Act of 10 May 2007 the authorised grounds for dismissal must not be related to the filing of a complaint about discrimination in general or the commencement of legal proceedings. The period of protection runs for 12 months after filing a complaint or, if legal proceedings have been initiated, until three months after the judgment has received the authority of res judicata. The sanctions available for failure to reinstate an employee in his or her former position are either a lump sum indemnity of either EUR 650 or EUR 1,300, or three or six months salary, depending on the circumstances, or an indemnity covering the actual harm caused. The employee can choose which sanction is to be applied. By Article 23 of the Act of 7 May 1999, in relation to equal treatment between men and women with regard to employment conditions, the authorised grounds for dismissal must not be related to the filing of a complaint or the commencement of legal proceedings. The period of protection runs for 12 months after filing a complaint or, if legal proceedings have been initiated, from the start of the proceedings until three months after the judgment has received the authority of res judicata. The sanctions available are an indemnity in lieu of notice and, for failure to reinstate an employee in or reassign an employee to his or her previous role, an indemnity of six months salary or an indemnity covering the actual harm caused. The employee can choose which sanction is to be applied. 33

20 Individual Dismissals Across Europe - BELGIUM The same Article applies to the filing of a complaint or the commencement of legal proceedings in relation to discrimination against a female employee on grounds of gender. The period of protection runs for 12 months after filing a complaint or, if legal proceedings have been initiated, until three months after the judgment has received the authority of res judicata. The sanctions available are the same as those mentioned above. By Article 32 of the Act of 4 August 1996, as amended by the Act of 11 June 2002, where there has been moral or sexual harassment, the authorised grounds for dismissal must not be related to the filing of a complaint or the commencement of legal proceedings, or the fact that an employee has been a witness to moral or sexual harassment. The period of protection runs for 12 months after lodging a complaint or testifying or, if legal proceedings have been initiated, from the start of the proceedings until three months after the judgment has received the authority of res judicata. The sanctions available for failure to reinstate an employee in his or her former position are an indemnity of six months salary or an indemnity covering the actual harm caused. The employee can choose which sanction is to be applied. 2.2 Age Employees aged 45 years and over can request their employer to finance an outplacement programme if they are dismissed (collective bargaining agreement no 82). Employees aged 58 years and over who have seniority of at least 38 years are entitled to a monthly pre-pension indemnity, which is owed from the end of the period of notice until the statutory retirement. The amount of the monthly pre-pension indemnity equals 50% of the difference between a reference salary and an unemployment allowance (usually not in excess of EUR 500 per month). 2.3 Length of service and fixed-term contracts By inserting a probationary period clause into the employment contract, both parties are given the opportunity to assess their professional relationship. The probationary period clause will only be valid if the employment contract is signed by the time the employee s employment with the company commences. The minimum length of a probationary period for white collar employees is one month. During this period, the employment contract cannot be terminated. If this rule is breached, the employer or employee must pay an indemnity equal to the employee s remuneration for the remainder of the month, plus seven days wages. The maximum length of a probationary period for white collar employees is either six months (if the employee s annual salary does not exceed EUR 36,604 in 2011) or 12 months (if the employee s annual salary exceeds that threshold). After the minimum probationary period of one month, the employment contract can be terminated during the probationary period with seven days notice or payment in lieu of notice. After the probationary period has expired, the employer is obliged to comply with the general legal provisions regarding termination of employment. 2.4 Part-time work and career breaks By Article 107bis of the Act of 22 January 1985 and Royal Decree of 25 November 1998, the authorised grounds for dismissal must not be related to a transition to a part-time contract. The period of protection runs from three months before the transition to part-time work until three months after the transition. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to six months' salary. By Article 101 of the Act of 22 January 1985, if an employee is on a full- or part-time professional career break, the authorised grounds for dismissal (in their nature and origin) must not be related to a request for leave. The period of protection runs from the date that the career break agreement is concluded or the date of the employee's request to invoke a right to a career break, until three months after the career break ends. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to six months' salary. Article 20 of collective bargaining agreement no 77 of 19 December 2001 provides broadly similar rules in relation to career breaks, namely that the period of protection runs from the date of the employee's written request or the date of the agreement pursuant to which the leave is granted until three months after the end of the work suspension. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to six months' salary. 2.5 Pregnancy and child care Pregnant women and those having recently given birth to a child are protected by Article 40 of the Act of 16 March 1971, which states that the authorised grounds for dismissal must not relate to the pregnancy. The period of protection runs from the moment the employer is informed of the pregnancy until one month after the maternity leave has ended and the available sanctions are an indemnity in lieu of notice and a protection indemnity equal to six months' salary

21 Individual Dismissals Across Europe - BELGIUM By Article 5 of the Royal Decree of 17 October 1994 where the mother of the child is hospitalised or dies, there will be a conversion of maternity leave into paternity leave. In those circumstances, the authorised grounds for dismissal of the father (in their nature and origin) must not be related to a request for leave. The period of protection runs from the moment the employer is informed of the request for leave until the leave ends. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to three months' salary. By Article 15 of collective bargaining agreement no 64 of 29 April 1997, the authorised grounds for dismissal (in their nature and origin) must not be related to a request for parental leave. The period of protection runs from the date of the employee s written notification (i.e. three months before the parental leave begins) until two months after the leave ends. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to six months' salary. By Article 11 of collective bargaining agreement no 80 of 27 November 2001 the authorised grounds for dismissal must not be related to a request to breastfeed. The period of protection runs from the moment the employee notifies the employer she wishes to exercise the right to breastfeed until the end of one month and one day after the period covered by the last medical certificate. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to six months' salary. By Article 30 of the Act of 3 July 1978, the authorised grounds for dismissal must not be related to adoption leave. The period of protection runs from two months preceding the start date of adoption leave until one month after the leave ends. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to three months' remuneration. 2.6 Carers By Article 101 of the Act of 22 January 1985, where an employee has taken leave to assist a person who needs palliative care or who is seriously ill, the authorised grounds for dismissal (in their nature and origin) must not be related to the request for leave. The period of protection runs from the date that the leave agreement is concluded or the date of the employee's request, until three months after the leave ends. The sanctions available are an indemnity in lieu of notice and a protection indemnity equal to six months' salary. 2.7 Employee representatives The employee representatives of the (European) works council and/or the committee for prevention and protection at work (the prevention committee ) and any substitute members, as well as any unsuccessful candidates at social elections that take place every four years within the company, are all protected against discrimination and dismissal. The period of protection starts to run from the 30th day preceding the posting of the election date for the upcoming elections. It runs for: four years after the elections for unsuccessful candidates who presented themselves for the first time two years after the elections for unsuccessful candidates at a subsequent candidacy the entire time of office until the members elected at the following elections take office (for members and substitute members of the works council and the prevention committee). As long as they enjoy protected status, these employees may be dismissed only: for serious misconduct, recognised in advance by the employment tribunal in a summary proceeding or for commercial or technical reasons recognised in advance by the joint committee of industry and/or the employment tribunal. Failure to observe the strict procedural rules regarding dismissal, as provided in the Act of 19 March 1991, may result in an adverse finding by the Labour Court that could expose the company to substantial financial liabilities. Protected employees are entitled to a lump sum indemnity of two, three or four years' compensation, depending on whether they have less than ten, between ten and 20, or more than 20 years service. In addition, protected employees who have requested reinstatement are, upon refusal by the company, entitled to compensation for the remainder of their term of office, in lieu of the normal termination indemnities. Union delegates can only be dismissed during the term of their office for reasons unrelated to their office. In practice, they can only be dismissed for gross misconduct or for economic and technical reasons. Failure to observe the procedural rules regarding dismissal, set out in the collective bargaining agreements concluded at industry level, exposes the 36 37