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Belgium: Labour Deal 2022: Improving the Employability After Dismissal

A second measure on dismissal law in the Labour deal (Act of 3 October 2022 on various labour provisions) concerns a system to improve the employability after dismissal (Chapter 6). In fact, the Unified Statute Act of 26 December 2013 had already provided for a similar system in Article 39ter of the Employment Contracts Act, but it was up to the sectors to elaborate the scheme.  Given that the sectors have neglected this with impunity for years and the legislator has delayed the entry into force several times, the initial Art. 39ter has now been replaced by a new system in the same article.

Essentially, for employees who are entitled to at least 30 weeks’ notice (+/- 10 years’ seniority) in the event of dismissal, the notice period will be converted into a two-part dismissal package. The first part covers 2/3rd of the notice period with a minimum of 26 weeks, during which the employee will simply perform his notice period with the employer or what can be paid out as severance pay (in proportion to that 2/3rd ). The second part of the severance package is 1/3rd of the notice period (or the remainder of it). This part can be spent on employability-enhancing measures such as training for specific professional skills, coaching or additional outplacement. While following these measures, the employee will receive his normal salary. If the dismissal was given with a notice period, the employee can follow these employability-enhancing measures from the beginning of the notice period, so the employee should not wait until the last 1/3rd part of the term. If the dismissal was given with severance pay, then the employee should keep himself/herself available to follow employability-enhancing measures. This obligation expires when starting a new activity as an employee or as a self-employed person, but it is not clear whether the obligation expires equally after the hypothetical notice period expires (we assume it does).

Employability-enhancing measures will be funded in both cases (notice period/severance pay) with the employer’s social security contributions on the second part of the severance package. This implies that high wage dismissed workers will receive greater funding for their employability promotion measures. This is in addition to outplacement obligations, which will still require four weeks’ wages to be deducted. And the employability-enhancing measures should also meet the existing quality requirements for outplacement measures.

Chapter 6 enters into force on 1 January 2023 and applies to dismissals occurring from the same date. The system applies equally to contractual staff in the public sector. The law does provide that the King may lay down further rules on how to calculate the notice period and severance pay of the first and second part of the dismissal package. It is still very unclear who or which institution will be responsible for providing the employability-enhancing measures (is this the employer or a third party?).