New year, new rules as to increased employability
As of 1 January 2023 new rules, regarding increased employability, apply in cases where employers dismiss an employee by means of a statutory notice period (or a corresponding indemnity in lieu of notice) of at least 30 weeks.
The employability-increasing measures in a nutshell
As part of the labor deal, the legislator wishes to enforce the employability of dismissed workers. In view thereof, a part of the employer’s social security contributions, due in the context of the termination of an employment agreement, can be used for employability-increasing measures (e.g. training, coaching and/or additional outplacement).
The employability-increasing measures come on top of outplacement, insofar as the employee is entitled thereto. If the employee opts for (additional) outplacement, in the context of the employability-increasing measures, the general quality requirements for outplacement, as determined by law, apply.
Which employees are involved?
These provisions will only apply to employees who are entitled to a notice period (or a corresponding indemnity in lieu of notice) of at least 30 weeks, as calculated in accordance with the legal provisions.
Furthermore, the rules do not apply if a transition path is initiated. In short, this is another measure of the labor deal, which allows dismissed employees to start working for another employer during their notice period, via a temporary work agency or a regional employment agency (VDAB, FOREM or ACTIRIS).
What’s in it for the employee?
Before elaborating on the entitlements of the employee, it needs to be pointed out that the notice period concerning indemnity in lieu of notice will be divided into two parts:
- The first part consists of a notice period (or a corresponding indemnity in lieu of notice) equal to two-thirds of the initial notice period, as calculated in accordance with the legal provisions, which amounts to at least 26 weeks;
- The second part consists of the balance, after having deducted the first part from the total notice period (or the corresponding indemnity in lieu of notice).
Additional rules might be issued on the calculation of the first and second part by royal decree.
For example, an employee is entitled to a notice period of 33 weeks. The first part is thus equal to 22 weeks, but will be increased to 26 weeks, which is the minimum. Consequently, the second part amounts to seven weeks.
The employer’s social security contribution that is imposed on the second part can be used for the employability-increasing measures. In our example, the budget will thus be equal to the employer’s social security contributions due on the seven weeks remuneration. The National Social Security Office will transfer the amount to the National Employment Office in order to finance these measures.
The employee will be entitled, as of the start of the notice period, to be absent from work (without losing their salary) in order to take advantage of these employability-increasing measures.
If the employment agreement is terminated with an indemnity in lieu of notice, the employee must remain available in order to make use of such employability-increasing measures.
As soon as the employee joins a new employer or pursues a self-employed activity, there is no longer an obligation to use the employability-increasing measures.
The preparatory works add that the employee will not be sanctioned, in the context of unemployment benefits, if the employee does not use any of the employability-increasing initiatives.
What’s in it for the employer?
This new measure will not result in an additional cost for the employer. The social security contributions that it normally pays on the salary, during the notice period or on the indemnity in lieu of notice, will now partially be used for the benefit of the former employee in order to enhance their employability after the dismissal.
If you have any questions on this subject, please contact us.
Kirsten Van de Steen