Up until today, in individual employment relationships, Saturday is generally a business day in Belgian labour law. This is relevant notably for those notifications which are subject to strict procedural rules. From 1 January 2023, this rule will change.
Termination of employment contracts
The most obvious examples are termination of employment contracts on notice (for indefinite and sometimes definite term contracts) and termination of employment contracts for serious cause.
The first set of rules requires notification of the notice by registered mail, and a registered letter is deemed to produce its legal effects the third day after mailing. For the notice period to start on the Monday of a particular week (on which day notice starts running since the Single Status Act of 26 December 2013), the registered letter must have produced its effect by the latest on the last business day of the preceding week. Until now, that is a Saturday; hence, notice letters can be sent on Wednesday of a given week to have the notice period commence the following Monday.
The second set of rules – with more dramatic consequences in case of failure to comply – concerns the procedure of dismissal for serious cause.
The dismissal must, by law, be notified by the latest within three working days from the day that the person authorised to dismiss knows the facts and the circumstances that led up to the dismissal for serious cause. Moreover, within an additional three business days after the dismissal, the grounds for the dismissal decision must be notified by registered mail to the employee. Here again, the notion of ‘business or working day’ is critical, and until now, Saturday has been considered a business day for these purposes. Case-law is somewhat unsettled if a Saturday is the third and final day of such a 3-day deadline. For some, in that situation, the final business day becomes the following Monday, while for others, there is no such jump (which is limited to acts in legal proceedings, while the abovementioned steps are not). Whatever the case, in case of failure to strictly observe these rules, the dismissal for serious cause becomes irregular and – irrespective of the gravity of the underlying facts – severance will automatically be due.
Saturdays as a business day
Book I of the new and updated Civil Code was promulgated by the Act of 28 April 2022. Article 1.7, §3 of the new Civil Code expressly states that working days or business days shall be all days ‘other than legal holidays, Sundays and Saturdays’. It also states that this rule shall apply unless specific statutes (acts/laws) provide otherwise.
Some authors have already suggested that certain references in specific labour regulations point towards Saturdays as a business day. Implicitly, this may be the case for the Labour Act of 1971, the Legal Holiday Act of 1974, or the Annual Vacation Act of 1971.
However, in the Employment Contracts Act (of direct relevance as the legal basis for the examples above), no such reference to Saturday as a business or working day is to be found.
Therefore, it appears correct that henceforth Saturday will no longer be a business day and that the above examples will have to do without taking into account a Saturday. This means that notice of termination must be given by the latest on Tuesday (for the notice period to commence the following Monday), and the procedural rules for dismissal for serious cause will become somewhat easier to apply since one will no longer have to take into account Saturdays. The effect of the new rule on other areas of employment law (such as working time, legal holidays and vacation) must be further assessed.
Taking effect in 2023
The new rule will come into effect from 1 January 2023 onwards, itself a Sunday. Punctual questions may, therefore, still arise in case of dismissal on notice or for serious cause between Christmas and New Year of 2022/2023, to be addressed and solved at that time.
For further information, please contact:
Pieter De Koster, Partner, Bird & Bird
pieter.dekoster@twobirds.com
