Belgium: Constitutional Court prohibits the Infinite Use of Successive Short-term and Replacement Contracts

The Constitutional Court ruled that Articles 10 and 11ter, §1, paragraph five of the Employment Contracts Act violate the principle of equality. These provisions prohibit the conclusion of temporary employment contracts and replacement contracts for longer than (in principle) two years, but such a prohibition does not apply if temporary employment contracts alternate with replacement contracts.

The Flemish Community had employed a clerk for sixteen years, alternating between temporary employment contracts and replacement contracts. At the end of the last employment contract in 2017, the clerk was not entitled to a dismissal notice or compensation, according to the Flemish Community.

However, per the Constitutional Court, the difference in treatment between consecutive temporary employment contracts or replacement contracts, separately and the situation where these contracts alternate between each other cannot be justified. In this way, an employer can deny the employee job security for years and the legislator thus allows a certain abuse of successive short-term contracts. Moreover, the Court attaches little value to the argument that an employee could take action against the excesses of a long-term use of temporary contracts by invoking the principle of “abuse of rights”. After all, in many cases it will not be possible for the employee to prove that the employer wanted to circumvent the law. It is precisely to remedy this problem of proof, that the legislator introduced the presumption of an employment contract for an indefinite period in Article 10 of the Employment Contracts Act at issue.

The legislator must now get to work to amend the relevant provisions of the Employment Contracts Act. In the meantime, the referring court may apply the maximum duration of two years to such situations. In the case of a longer duration, the employee will have been deemed to be hired with an employment contract of indefinite duration.

Source: Constitutional Court 17 June 2021, no. 93/2021

Key Action Points for Human Resources and In-house Counsel 

• Track the duration of your temporary employment contracts.
• Avoid applying temporary contracts longer than 2 (or in some cases 3) years unless you want to offer these employees a permanent contract. In this case it might be better to conclude a new contract for indefinite term.
• Switching between temporary contracts and replacement contracts is not allowed if these contracts, combined, exceed the maximum duration (usually 2 years).