Companies which have to organise social elections are strongly advised to avoid dismissals during the first months of 2016. They do not know which employees will be nominated as candidates, and the protection against dismissal for candidates is already applicable. An employer dismissing an employee who turns out to be a candidate will have to pay draconian compensation (unless the employee requests reintegration in good time and the employer accepts this in good time).
Protection against dismissal of employee representatives and candidates
Employee representatives on the works council and the committee for prevention and protection at work, as well as non-elected candidates, are protected against dismissal. They may only be dismissed for a serious cause with the prior approval of the labour court or for economic or technical reasons which have previously been approved by the competent joint committee.
In the case of dismissal of an employee representative or a candidate employee representative without compliance with the conditions and procedures, the employer will have to pay an extremely large amount of compensation, equal to between two and slightly in excess of eight years of salary, depending on the time of dismissal, the seniority of the employee, and whether or not reintegration into the company was requested in time.
For any envisaged dismissal, it is necessary to check in advance whether the employee concerned is a member of the works council or the committee for prevention and protection at work, or has been nominated as a candidate for these bodies.
If the company does not have a committee for prevention and protection at work but there is a trade union delegation, the trade union delegation carries out the duties of the committee for prevention and protection at work. The members of the trade union delegation then benefit from the same protection as the employee representatives on a committee for prevention and protection at work.
The danger of the "occult period"
The protection against dismissal granted to employee representatives on the works council and the committee for prevention and protection at work, and to candidate employee representatives, starts on the 30th day prior to the posting of the notice determining the date of the election. This notice must be posted on what is called "day X", 90 calendar days before the election date. Depending on the date on which the social elections will be held in the company (between 9 and 22 May 2016), day X falls between 9 and 22 February 2016 and day X-30 falls between 10 and 23 January 2016.
The lists of candidates for the 2016 social elections must be submitted to the employer or submitted through the web application on day X+35 at the latest, i.e. at the latest on a date between 15 and 28 March 2016 (depending on the date on which the social elections will be held in the company). As mentioned above, candidates are already protected against dismissal as from January. This dismissal protection thus starts prior to the employer having knowledge of the candidacy.
The period between day X-30 (10–23 January 2016) and day X+35 (15–28 March 2016) is known as the "occult period", since an employer who dismisses an employee during this period runs the risk of inadvertently dismissing a protected employee without respecting the prescribed procedures, and this could result in heavy costs for the employer.
Even after day X+35, employers still need to be careful, since, in certain cases, the trade unions which have nominated candidates have the possibility of replacing candidates on the list up until the 14th day before the elections.
Conclusion
Companies which have to organise social elections would do well to refrain from any dismissals (including dismissal in the context of the "unemployment with company allowance" regime, i.e. the former early retirement regimes). Any dismissals which are currently planned should preferably be implemented before 2016.