Social elections 2020 and Corona: A new occult protection period!
The social elections for the designation of the representatives of the personnel in the works’ council and the committee for prevention and protection at work had to be organized during the period 11 – 24 May 2020.
Due to the Corona-crisis the election procedure has been suspended. The procedure has been reactivated meanwhile and the new election period runs from 16 November 2020 up to 29 November 2020.
As a result also a new occult protection period applies. In the case of an envisaged lay-off, think twice before going ahead!
The start of the reactivated election procedure
For the course of the election procedure, two dates are crucial: 1) the date at which the elections will effectively be held (generally and also hereinafter referred to as day “Y”); and 2) the date at which the date of the elections is announced within the company by posting of a notice; this date precedes day Y by 90 days (generally and also hereinafter referred to as day “X”).
The new day Y
The new election date (the new day Y) is determined as follows in consideration of the election date, fixed originally within the company:
The new day X
The new day X is fixed on the basis of the new election date: in accordance with the regulations, this day X precedes day Y by 90 days (X = Y-90).
Consequently, day X is the 90th day preceding the new election day in the course of the new election period in the course of the month of November (16-29 November). So, as an example: if the elections in your company take place on 16 November 2020, day X is 18 August 2020; if you hold the elections on 29 November 2020, day X is 31 August 2020.
The further course of the reactivated election procedure
On the basis of the new day X, the further course of the election procedure is determined.
The election procedure was suspended as from the original day X+36. As from that phase of the original election procedure, the procedure is now resumed.
Consequently, the procedure up to election day looks as follows (by way of example, the date mentioned is based on the assumption that X = 18 August 2020):
X+29 16 September 2020: ultimate date for the posting and the communication of the announcement rectifying the original announcement including the communication of the new election calendar and the timetable
X+36 23 September 2020: formal restart of the election procedure and starting date for negotiations on electronic voting
X+40 27 September 2020: posting of the lists of candidates and designation of the chairpersons of the polling stations
X+47 4 October 2020: ultimate date for filing a complaint against the lists of candidates
X+48 5 October 2020: communication of the complaints to the trade unions
X+52 9 October 2020: ultimate date for filing an appeal against the lists of candidates, if no complaints have been introduced
X+54 11 October 2020: modification of the lists of candidates by the trade unions and designation of the members of the polling stations
X+56 13 October 2020: posting of the lists of candidates, modified or not, and ultimate date for entering into an agreement on voting per mail and/or electronic voting
X+60 17 October 2020: posting of the composition of the polling stations
X+61 18 October 2020: ultimate date for filing an appeal with the employment tribunal against the lists of candidates, if no complaints have been introduced
X+66 23 October 2020: decision of the employment tribunal on an appeal, if any, against the lists of candidates filed on X+52
X+70 27 October 2020: appointment of the witnesses
X+75 1 November 2020: decision of the employment tribunal on the appeal filed on X+61
X+76 2 November 2020: replacement of candidates by the trade unions
X+77 3 November 2020: definitive lists of candidates and definitive lists of voters
X+79 5 November 2020: possible discontinuation of the election procedure
X+80 6 November 2020: handing of the convocation letter against receipt and, in the case of voting per mail, sending of the convocation letter and the ballot papers
X+82 8 November 2020: sending by registered mail of the ballot paper in the absence of a receipt
Y 16 November 2020: ballot
The new occult protection period
The employees who are presented as candidates for the social elections enjoy a far reaching protection, including a.o. that they can be laid off only for just cause, approved beforehand by the employment judiciary, or on the basis of economic or technical reasons which have been submitted beforehand for approval to the labour-management committee.
In the case of non-compliance with the procedure a protection indemnity, which can go up to several times the annual remuneration, may be imposed.
The trade unions had to file their lists of candidates prior to the suspension of the election procedure. These candidates are protected and this protection remains valid for them. So, obviously the occult protection period is no issue anymore for them.
Nevertheless, a new occult protection period is applicable as from the new day X, which is relevant if candidates on the original lists of candidates are replaced either as a result of an appeal against these original lists of candidates if no complaints had been filed (see above X+52), or as a result of an appeal against the original lists of candidates if a complaint had been filed (see above X+61),or in the case of replacement of candidates on the original lists of candidates because of other circumstances such as the passing away of a candidate or resignation by a candidate.
Such a replacement may occur up to day X+76 and the far reaching protection against lay-off also applies to these new candidates. This protection applies as from day X.
Also an employee, who has been laid off after the new day X, may be presented as a replacement candidate and he enjoys the same protection.
On day X, the employer obviously does not know whether or not a complaint or an appeal will be filed against one / more candidate(s) on the submitted lists and, in the case of an appeal, he knows for sure only on day X+75 whether one / more candidate(s) will have to be replaced and, if so, only on day X+76 he will know the identity of the replacement candidate(s).
Since also members of personnel, who are laid-off after the new day X, may be presented as the replacement candidate, it remains very delicate for an employer to lay off employees during that period.
Obviously, it will be our pleasure to remain available for all assistance or information, as deemed appropriate.
Marcel Houben – marcel@houben-hrlegal.eu