Activation of dismissed employees: promotion of employability and transition path
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The government wants to get dismissed employees back to work faster by increasing their employability in the labour market and aims to reduce the threshold for moving to a new job.
In this newsletter, we discuss two new measures that make the Belgian dismissal legislation more flexible in this sense, namely the measures for the promotion of employability and the transition path.
Measures for the promotion of employability
What?
An employee dismissed from 1 January 2023 by the employer with at least 30 weeks' notice period/severance indemnity (= at least 9 years' service) will be entitled to follow the “employability promotion measures". The right does not apply if the parties opt for a transition path (see point 2).
Incidentally, the law does not define what the employability promotion measures are, but they could include additional training, coaching or outplacement.
Conditions
In particular, this means the following:
- In case of dismissal with a notice period: the employee may, from the beginning of the notice period, be absent from work with pay to follow the employability promotion measures.
- In case of dismissal with a with severance indemnity, the employee must make himself available to follow the employability promotion measures. The employee's obligation to make himself available to follow the employability promotion measures ends as soon as he enters into a new employment relationship or becomes self-employed.
In cases of dismissal with at least 30 weeks' notice period/severance indemnity, the employer already had an obligation to make an outplacement offer to the employee. These measures come on top of that.
These employability promotion measures are financed by the employers’ social security contributions during 1/3 of the notice period or by the employers’ social security contributions on 1/3rd of the amount of the entire severance indemnity.
Transition path
What?
Employees dismissed by their employer with a notice period will be given an extra opportunity in their search for other work, i.e. the so-called “transition path”.
The transition path allows the employee to start working for another employer (="employer-user") during the notice period with a view to a final recruitment. At the end of the transition path, the employer-user has the obligation to offer an employment contract of indefinite time. If this is not done, the employer-user will have to pay a compensation.
The organisation of the transition path is done by a temporary work agency or the regional employment services (VDAB, Forem, Actiris). So there are four parties involved in this construction.
Conditions
Before the start of the transition path, the four parties must enter into a written agreement detailing the terms of the transition path.
The period of the posting may not exceed the notice period to be performed.
During the transition path, the original employer pays the salary valid for the position with the new employer. Only if the original salary was higher, the original employer will continue to pay that salary. However, the employer-user will have to reimburse a part of the salary to the original employer.
Early termination of the transition path
Although the purpose of the transition path is to conclude an employment contract of indefinite time, both the employee and the employer-user have the option of terminating the transition path early by using a notice period based on seniority from the start of the transition path. In that case, the employee will in principle return to the original employer to perform the remaining notice period there.
Seniority
When the employee enters into service with the employer-user, his seniority starts counting from the start of the transition path. However, a particular feature is that the employee retains the full seniority accrued with his original employer for the right to time credit, career break and thematic leave.
