Social elections – when are candidates protected against dismissal?

27 October 2023 4 min read

By Frederic Brasseur and Laurent De Surgeloose

At a glance

The candidates in the social elections benefit from specific protection against dismissal.
Under the act of 19 March 1991, a dismissed worker has the choice between claiming only the fixed part of the protection indemnity, or claiming reintegration within 30 days.
The specific protection against dismissal applies in principle for the full four-year period up to the next social elections.

Staff representatives in the works council and the committee for prevention and protection at work are elected every four years in social elections. The next social elections will take place between 13 and 26 May 2024, on a day chosen by the employer.

The candidates in the social elections benefit from specific protection against dismissal governed by the act of 19 March 1991 however, it can sometimes be difficult for an employer to know who is covered by this protection.

The protection against dismissal for candidates in the 2024 social elections becomes applicable as of X – 30, in the terminology of the social elections, which is between 14 and 27 January 2024.

The trade unions should only submit their list of candidates on on X + 35, which is between19 March and 1 April 2024. The protection against dismissal has a retroactive effect of 65 days. The protection only applies to the candidates on the final list submitted by the trade union in question. So if a trade union submits a list with candidates before the deadline, workers not on that list can still be covered by the act of 19 March 1991 if the trade union submits a new list of candidates by the deadline of X + 35, and the worker is on that list.

Even when having received the final list of candidates, an employer can still not be certain who is covered by the act of 19 March 1991. The trade unions can replace candidates up to X + 54, which is between 7 April and 20 April 2024. This is subject to the replaced worker being in service on X – 30. The trade unions can’t obtain an extra period for recruiting candidates on X + 35 by submitting a list of candidates including fake names and replace these fake candidates with a genuine candidate by at the latest X + 54.

The trade unions even have up to X + 76, which is between 29 April and 12 May 2024, to replace a candidate in case of death, a resignation (either a resignation from the company or a resignation of trade union membership) or when a candidate becomes part of a different category (for instance a blue-collar worker switching to a white-collar function). Only at X + 77, will the employer know for certain who is covered by the specific protection against dismissal.

Under the act of 19 March 1991, a dismissed worker has the choice between claiming only the fixed part of the protection indemnity, or claiming reintegration within 30 days. If the employer accepts this reintegration, no termination indemnity is due, only the pay for the period between the dismissal and the reintegration. If the employer refuses this request for reintegration (or doesn’t make a decision within 30 days), the dismissed worker is not only entitled to the fixed part of the protection indemnity, but also the variable part.

If the dismissal happens before the trade unions submit their list of candidates, the worker is only entitled to an indemnity under the act of 19 March 1991 when having requested reinstatement but the employer did not accept the reinstatement. If a dismissed worker turns out to be a candidate, an employer could still decide to accept the request for reinstatement, but either follow the procedure under the legislation concerning the social elections for contesting the validity of the candidacy (arguing it would be abusive), or applying for the authorisation by the joint committee for proceeding to a dismissal for economic or organisational reasons.

The fixed part of the protection indemnity is:

Two years’ pay if the worker has been employed continuously for less than ten years;
Three years’ pay if the worker has been employed continuously for between 10 and 20 years; and
Four years’ remuneration if the worker has been employed continuously for at least 20 years.

The variable part of the protection indemnity is pay up to the next social elections. For candidates in the May 2024 social elections, this is the pay for the period up to May 2028.

The specific protection against dismissal applies in principle for the full four-year period up to the next social elections. Only if a candidate is not elected for a second time, the protection only applies for a two-year period. There is no condition that this would concern consecutive social elections. A worker who was an unelected candidate in the 2016 social elections, who was elected in the 2020 social elections and is again an unelected candidate in the 2024 social elections, will only be covered by the protection against dismissal for a two-year period.