An employee who is dismissed with a notice period or who performs a notice period after resigning is entitled to so-called “job search leave” (“sollicitatieverlof – congé pour la recherche d’un nouvel emploi”), which is the right to be away from work with pay to look for a new job. As an exception to the general rule that employees are entitled to a full day (or two half-days) of job search leave only during the last 26 weeks of the notice period and are entitled to a half-day of job search leave during the preceding period, employees who benefit from outplacement assistance are already entitled to a full day (or two half-days) of job search leave from the beginning of their notice period. According to case-law, an employee who is entitled to outplacement can benefit from this exception even if he/she has not yet received an outplacement offer and/or has not yet started the outplacement support. Also the Federal Public Service Employment shares this view.
Legal framework
Article 41 of the Employment Contracts Act sets out the following rules for the number of job search leave days an employee performing a notice period is entitled to:
- General rule: During the last 26 weeks of the notice period, employees are entitled to one full day (or two half-days) of job search leave per week. However, during the preceding term of the notice period, they are only entitled to a half day of job search leave.
- Exception: Employees “who benefit from outplacement support as set out in Chapter V of the Act of 5 September 2001 to improve the employment rate of workers” are entitled to a full day of job search leave during the entire notice period (and therefore not just during the last 26 weeks of this notice period).
The question arises as to what is understood by employees “who benefit from outplacement support as set out in Chapter V of the Act of 5 September 2001 to improve the employment rate of workers”?
Does this also include employees who are entitled to outplacement but who have not yet received an outplacement offer and/or have not yet effectively commenced with the outplacement support? Are such employees considered as employees “benefitting” from outplacement support?
The Federal Public Service Employment’s viewpoint is confirmed by case law
The Federal Public Service Employment has confirmed that, in its view, the above-mentioned Article 41 of the Employment Contracts Act should be interpreted as such that an employee who is entitled to outplacement assistance, as set out in Chapter V of the Act of 5 September 2001 to improve the employment rate of workers, is allowed to take one day (or two half-days) of job search leave during the entire duration of the notice period. Even at the start of this notice period, when the employee would not yet effectively enjoy the outplacement assistance because he/she would not have received an outplacement offer yet or would not have effectively started with the outplacement support programme yet, the employee is entitled to 1 day (or two half days) of job search leave.
However, as soon as the employee refuses an outplacement offer or terminates the outplacement support, the latter will fall back on the general rule only entitling him/her to a full day of job search leave during the last 26 weeks of the notice period, but not during the preceding period of the notice period.
This was also confirmed by an Antwerp Labour Court judgment on 15 December 2020. The court stated that Article 41 of the Employment Contracts Act explicitly refers to the provisions of Chapter V of the Act of 5 September 2001, which set out the conditions to be entitled to outplacement. The court said deciding otherwise would deprive the law of having any useful effect, as the employer’s failure to make an outplacement offer or to pay the outplacement invoice could then result in the employee never being allowed to take a full day of job search leave at the beginning of the notice period.
This applies for both employees entitled to the ‘general outplacement regime’ (these are employees with a notice period of at least 30 weeks) and employees entitled to the ‘special outplacement regime’ for employees who are at least 45 years old.
Practical modalities
The outplacement assistance is required to be followed during the job search leave.
Employees may use their job search leave for interviews or tests, as well as for searching and screening advertisements, writing a CV, etc.
For part-time employees, the calculation of the job search leave must be proportional to their part-time work schedule.
Employees who have already found a new job are still entitled to job search leave during the remainder of the notice period since they still have the right to look for an even better job.
If you would like further information regarding this topic, then please contact Philippe De Wulf ([email protected]), Emma Van Caenegem ([email protected]) or Esther Soetens ([email protected]). They are available to answer any practical questions you might have.