An employer wishing to terminate an employment agreement during a period of suspension or reduced work due to time credit or thematic leave must proceed with caution. Although it is not absolutely prohibited to terminate the employment agreement during these periods, the following elements must be born in mind before proceeding.
Protection against dismissal
1. Principle
An employer may not terminate the employment agreement of an employee who is on full-time time credit or thematic leave, or whose work performance is reduced due to these reasons, except for serious cause or a cause unrelated to the time credit and thematic leave. The burden of proof lies with the employer.
In case the employer does decide to terminate the employment agreement, the employer must be able to provide proper documentation demonstrating that the termination is not due to the employee’s time credit or thematic leave, but due to other reasons such as a company reorganization or the employee’s inadequate performance.
This protection even extends to preparatory acts leading to dismissal.
For example: if an employer terminates the employment agreement of an employee who is on full-time time credit after the protection period, but already published a job offer for the employee’s position during the time credit.
2. Duration
Depending on the type of leave taken, the protection against dismissal begins either when the employee notifies the employer in writing of his/her intention to take time credit/thematic leave or when the employer approves the leave. This protection extends until:
- three months after the end of the time credit or thematic leave;
- 3 months after the employer refuses the request for time credit;
- one month after the requested start date if the thematic leave did not start.
3. Sanction
If an employer violates this protection, he must pay the employee a lump-sum indemnity equivalent to six months’ salary, in addition to any severance pay.
Calculation of notice period and severance pay
1. Full-time suspension of the employment agreement
Notice period
If an employer would terminate the employment agreement by means of a notice period, the notice period will be suspended during the period of full-time time credit or thematic leave. In other words, the notice period will be prolonged with the duration of the full-time time credit or full-time thematic leave.
Severance pay
The severance pay must be calculated on the employee’s normal salary as if the employee had not taken time credit or thematic leave.
2. Reduction of work performance
Notice period
The notice period should be calculated as if there was no reduction in work performance. During the period of time credit and thematic leave, the employee must perform the notice period based on the reduced work schedule. If the time credit or thematic leave ends during the notice period, the employee must then perform the remainder of the notice period according to the work schedule prior to the time credit or thematic leave.
Severance pay
In the past, there has been some debate in case law about whether the severance pay for an employee whose work performance was reduced due to time credit or parental leave should be based on the reduced salary or the normal salary as if the employee had not taken leave. This resulted in different rules depending on the type of leave taken.
At the end of 2022, the Belgian legislator provided clarity on this issue: if the employment contract is terminated during a period of reduced work performance due to time credit or thematic leave, the severance pay must be calculated based on the normal salary as if the employee had not reduced their work performance. This applies provided that the reduction in work performance is not indefinite. This condition consequently excludes employees who take time credit for a career end (“landingsbaan”/ “crédit-temps fin de carrière”) until their retirement, as this involves an indefinite reduction in the work performance.
Main takeaways
When considering terminating the employment contract of an employee on time credit or thematic leave, keep the following in mind:
- Ensure you have sufficient documentation demonstrating that the cause for termination is not related to the time credit or thematic leave.
- If you decide to terminate the employment agreement with severance pay, take into account the type and duration of the leave taken by the employee, as this will determine the salary on which the severance pay should be calculated.
For more information on this topic or other payroll related matters, do not hesitate to reach out to Pro-Pay via the contact form.
