On 22 June 2020, the law of 15 June 2020 regarding the suspension of the notice periods for dismissals notified prior to or during a period of temporary unemployment for reasons of force majeure as a result of the COVID-19 crisis (the 'law') entered into force.
Even though it can be argued that force majeure suspends a notice period, it was commonly assumed that, when an employer gives notice of dismissal to an employee who is either placed on furlough for reasons of force majeure ('furlough') at the time or is placed on furlough during the notice period, the notice period continues to run during such period of furlough.
This resulted in the Belgian media reporting cases where employers notified employees of their dismissal with a notice period that should normally be worked, while placing the employees on furlough paid by the Belgian state. The reports concluded that the termination costs were being borne by the Belgian state instead of the employer.
The legislator has therefore enacted the law to clarify and confirm that, although employers and employees can notify their intention to terminate employment contracts during a period of furlough:
- notice periods notified by employers on or after 22 June 2020 will be suspended during periods of furlough; and
- notice periods notified by employers on or after 1 March 2020, but still ongoing on 22 June 2020, will, as from the latter date, be suspended during periods of furlough.
If an employee resigns, the notice period is not suspended by the period of furlough.
The legislator's initial intention to give retroactive effect to the law as from 1 March 2020 for employees in furlough whose notice period was still ongoing as of 5 May 2020 received a negative advice by the Council of State and was hence abandoned.
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