?Although the vast majority of companies work from Monday to Friday, Belgian labor law still attaches great importance to Saturdays. When the Employment Contracts Act refers to “working days” (e.g., the three-work day period for a dismissal for just cause or the registered letter serving notice that takes effect on the third workday after it is sent), Saturdays must always be taken into account as such. However, the new Book I of the Civil Code will change this situation, effective Jan. 1, 2023, as a result of which employers will in all likelihood have to observe other legal deadlines in the event of, for example, an employee dismissal.
The Employment Contracts Act Does Not Define a Workday
There are many provisions in the Employment Contracts Act that refer to “working days.” In this respect, (i) Article 31 states that the employee must submit his or her medical certificate to his or her employer within two workdays from the start of the work incapacity, unless the work rules provide otherwise; (ii) Article 35 stipulates that a dismissal for just cause must take place within three workdays from the day that the employer knows the facts and that the written explanation of the reason(s) for the dismissal for just cause must be given within three workdays following the dismissal; and (iii) Article 37 stipulates that a registered letter giving notice takes effect on the third workday following the date that the letter was sent.
However, the Employment Contracts Act does not further specify what exactly is to be understood by “working day.” Referring to a comment in the Explanatory Memorandum to the Employment Contracts Act and to the Act on Annual Holiday, it has so far been generally accepted that workdays are all the days of the week except for Sundays and public holidays—that is, including Saturdays. This means, for example, that:
- If the employer becomes aware of serious acts committed by an employee, Caro, on Wednesday, it must dismiss her for just cause on Saturday at the latest, and the HR manager must go to the post office on Saturday to have the dismissal letter sent by registered mail.
- The letter giving notice to an employee, Vince, must be sent on Wednesday at the latest for the notice period to start on the following Monday.
- If an employee, Camille, becomes ill on Friday, she has to send her medical certificate to her employer on Saturday at the latest, even though her company operates only from Monday to Friday.
However, as of next year, these situations will change.
Saturday Is No Longer a Workday in the Civil Code
Article I.7, §3 of the new Civil Code contains the following (emphasis added): “Working days are all days other than public holidays, Sundays and Saturdays.” This new rule applies on the condition that no other specific law derogates from it. Since the Employment Contracts Act still does not explicitly state what exactly is to be considered as a “working day,” one has to refer back to the new Civil Code, unless the legislator would introduce a different definition of “working days” in the Employment Contracts Act. This new rule will take effect on Jan. 1, 2023.
In practice, this will mean in the examples above that:
- If Caro’s employer becomes aware of the facts justifying a dismissal for just cause on Wednesday, then from Jan. 1, 2023, Caro will only have to be dismissed on Monday at the latest instead of Saturday, which means that the employer has an extra weekend to think about this dismissal.
- The letter giving notice to Vince has to be sent on Tuesday instead of Wednesday, which means that the employer has to send the letter giving notice a day earlier than usual for the notice period to start on the following Monday.
- Camille, who fell ill on Friday, only has to send her medical certificate to her employer on Monday instead of Saturday.
Better Safe than Sorry
Until the end of Dec. 31, everything will remain the same. Saturday is, unfortunately for many, a workday in the current state of labor law and must therefore be taken into account to calculate legal deadlines under the Employment Contracts Act.
As of Jan. 1, 2023, the new rules included in the new Civil Code will apply. However, the new Civil Code stipulates that Saturday is not a workday “unless another specific law would stipulate otherwise.” There is yet no definite answer as to what should be considered as “another specific law.” As noted above, the Employment Contracts Act does not explicitly define what should be considered as a workday. Yet, the Explanatory Memorandum of the Employment Contracts Act states that Saturday is a workday, and there are other legal texts within the field of labor law that implicitly refer to Saturday as a workday (for example, the Annual Holiday Act). Although unlikely, it cannot be entirely excluded that the labor courts would qualify this as “another specific law” and still consider Saturday as a workday.
Since the new regulations have not yet taken effect, the labor courts have not been able to rule on the exact interpretation of the new Civil Code. Therefore, as long as there is no final decision on the matter by the labor courts, we recommend being cautious and to always apply the most advantageous option for the employee. In practice, this means that from Jan. 1, 2023:
- In the case of a dismissal for just cause, Saturday is still to be considered as a workday and should therefore be taken into account for the calculation of the double three-day period.
- The letter giving notice must be sent at the latest on Tuesday instead of Wednesday for the notice period to start on the following Monday.
- No immediate penalty should be given to employees who do not take the Saturday into account for submitting their medical certificate.
Esther Soetens and Mieke D’Hanis are attorneys with ALTIUS in Brussels. © 2022 ALTIUS. All rights reserved. Reposted with permission of Lexology.