Social elections and the occult period

Soon social elections and the start of the ‘hidden period’ to protect candidates …

Early January is the perfect time to remind employers looking to dismiss employees that they may be protected from dismissal without the employer's knowledge. This is known as the ‘hidden’ period. This means that they cannot be dismissed for reasons related to the performance of their duties and a special procedure must be followed to terminate their employment (even for serious reasons). I will not go into details about these very complex and formal procedures.

Elected candidates are protected for 4 years. The protection period for unelected candidates is basically the same as for elected employee representatives. However, the protection period for candidates is limited to two years after the announcement of the election results if the employee is not elected in two consecutive elections (for example, if an employee is a candidate in the 2016 and 2020 elections and is not elected, his protection ends in 2022). What matters here is that the protection period starts on the 30th day before the date of announcement of the date of the social elections (X-30). However, since the lists of employees are only presented 35 days after this announcement date (X + 35), there is a period of 65 days during which an employer can dismiss an employee without even knowing he or she is protected and thus in violation of the special dismissal procedure. Hence the nickname ‘hidden’ period.

The only way to avoid protecting an employee from dismissal for social elections is to effectively terminate the employment contract BEFORE the employee is a candidate for social elections.

The ‘occult period’ begins … now

For the 2020 social elections, the ‘occult’ period (depending on the date chosen for the social elections - first date May 11, 2020 and last date May 24, 2020) starts no earlier than 12 January 2020 and no later than 25 January 2020 and ends no earlier than 17 March 2020 and no later than 30 March 2020.

The only way to prevent an employee from enjoying protection against dismissal before the social elections (assuming he does not (no longer) enjoy protection before the 2016 elections - to be verified) is to effectively notify the termination of the employment contract BEFORE he is a candidate for the social elections.

For some employers it is already too late, for others there is still time.

Alternatively, employment may be terminated before X + 35, being the date the list of candidates is announced, or in other words during the ‘hidden period’.

Even if a candidate already enjoys protection during the ‘blackout period’, there is a big difference in protection. A candidate who is dismissed during the blackout period and does not apply for reinstatement is not entitled to protection pay - unlike a dismissal after the blackout period, where the fixed protection pay of 2, 3 or 4 years' pay, depending on seniority, is due even if the employee does not apply for reinstatement.

In other words, even if the employee is already candidate and protected, you can always rehire him in the worst case scenario and pay nothing.