Senior Associate Thomas De Jongh and Of Counsel Pieter Pecinovsky, both members of VOW's Employment team, have published an article in the online open access 'Arbeidsrechtjournaal'. Below you can find a summary of the content in English.
Labour law and social security law are sometimes treated as separate worlds. However, they are intertwined in several ways. The end of the employment relationship is a good example of such a significant interface. After all, dismissal or termination often follows the risk of unemployment for the employee. To deal with this risk, the lesiglator has provided for a system of unemployment benefits. Nevertheless, not every (former) employee will have access to unemployment benefits just like that. From an employment law perspective, the impact of dismissal law on access to unemployment benefits is sometimes overlooked, however, it can be of great importance to both the employer and the employee.
When an employee is at least partly responsible for the end of his employment contract, he can be excluded from the right to unemployment benefits by the National Employment Office (NEO) for a certain period of time. As a result, the employee will fall back on his own means of subsistence or on a living wage.
But it is also important for the employer to take into account the social security consequences of a dismissal or termination of the employment contract. For example, it can be an HR policy to avoid negative consequences of a termination for (former) employees as much as possible or to minimize the risk of a legal dispute. Especially because of the latter reason, an employer might prefer a termination by mutual agreement over a unilateral termination or a dismissal for compelling reasons. For the employee, such a termination by mutual agreement mainly entails a risk if the employee does not immediately find another job and therefore may have to claim unemployment benefits. However, a termination by mutual agreement is considered as a form of voluntary unemployment (see below) which may lead to an exclusion from unemployment benefits.
The problem here is often that it is very difficult to correctly assess the risk or the consequences of the sanction. The legal range that the NEO must use for the period of exclusion is broad, ranging from 4 weeks to as much as 52 weeks. In order to partially deal with this uncertainty, the authors requested the most recent figures on exclusion practice from the NEO. Exlusion is imposed in 81.9% of the cases of voluntary unemployment. The remaining 18.1% lead to a warning in 9.2% and in 8.9% to a total or partial postponement, which means that there is no effective exclusion. More than 70% of the sanctions are related to work abandonment.
Of the effective exclusions (81.9% of the total number of cases handled):
- 12.8% to an exclusion of less than 5 weeks;
- 48.7% to an exclusion between 5 and 12 weeks;
- 31.7% to an exclusion of 13 weeks;
- 6.8% to an exclusion longer than 13 weeks.
If we calculate these percentages on the total number of the treated cases of exclusion by the NEO, we arrive at:
No effective exclusion:
- Warning: 9.2%
- Postponement: 8.9%
Effective exclusion
- < 5 weeks: 10,48%
- 5-12 weeks: 39,89%
- 13 weeks: 25,96%
- > 13 weeks: 5.57%
The above figures show that the probability that an exclusion is effectively imposed is quite high. Only in 18.1% does the NEO settle for a warning or an exclusion with postponement.
On the other hand, it appears that the duration of the possible exclusion from unemployment benefits should not be exaggerated either. In no less than 65% of the treated cases of voluntary unemployment, the exclusion will be between 5 and 13 weeks. This contribution therefore tries to provide some guidance for the employer and the employee, or for the practitioner who mediates between the parties or helps to find a solution.