Distinguishing between notice periods and protection periods

In our final article on the subject of incapacity for work, we take a look at the distinction between notice periods and protection periods, which can be a real challenge for employers to manage. Between the law and contractual specificities, the risk of making mistakes is high, which can have significant legal and financial consequences. Ekspert is here to help you navigate these complex waters and avoid common pitfalls.

Understanding notice periods
Leave periods vary according to a number of criteria, including the length of service of the employee and the nature of the contract (fixed-term or open-ended). Here are the key points to be aware of:

1. Trial period: During this period, the notice period is generally 7 calendar days. The contract may be terminated at any time, unless otherwise stipulated in the contract.
2. Seniority: After the probationary period, the statutory notice periods are :
   o 1 month during the first year of service,
   o 2 months from the second to the ninth year,
   o 3 months from the tenth year onwards (net or for the end of a month).
3. Fixed-term contracts: These contracts end on the agreed date without the need for termination. However, their abusive sequence may be requalified as a contract of indefinite duration, making the notice periods applicable.

Distinguishing between protection periods
Protection periods are periods during which an employee is protected against dismissal, particularly in the event of illness, accident, pregnancy or military service. Here’s what you need to know:

1. Sickness and accident :
   o 30 days’ protection in the first year of service,
   o 90 days from the second to the fifth year,
   o 180 days from the sixth year onwards.
2. Pregnancy and maternity: Women are protected against dismissal during pregnancy and the 16 weeks following childbirth.
3. Military/civil service: Protection applies throughout compulsory service and for four weeks before and after such service.

Pitfalls to avoid

1. Miscalculation of periods: Protection periods suspend leave periods. For example, if an employee falls ill while on leave, the leave period is extended by the number of days of illness (in the case of a net contractual leave period).
   However, if the leave period is stated in the employment contract ‘for the end of a month’, then the leave period is extended to the end of the following month. Even for a sick day.
2. Non-compliance with formalities: Although oral termination is possible, it is always advisable to proceed in writing for reasons of proof. Incorrectly notified termination may be declared null and void.
3. Resignation during the period of protection: An employee in a period of protection (illness, pregnancy) may decide to resign without the protection applying, which is different from termination by the employer.

Case study:
Mr Dupont, an employee with 7 years’ seniority, receives a letter of dismissal on 21 August. The contractual notice period is 2 months net, with an end date of 21 October. However, several events disrupt this period.

1. First event :
   o Illness: From 10 to 24 September (15 days).
   o Protection: The leave period is suspended during this period.
2. Second event :
   o Accident: Following an accident, Mr Dupont is off work for 6 months, from 10 Oct. to 10 April.
   o Protection: The leave period is again suspended.

Calculation of the actual notice period :

• Start of leave period: 21 August
• Initial end of leave: 21 October (2 months net, i.e. 61 days).
• With more than 6 years‘ seniority, Mr Dupont benefits from 180 days’ protection against dismissal in the event of illness or accident. Therefore, the first extension of the leave period is to 6 November, after the 15 days of illness (end of contract on 21 October + 15 calendar days of illness, i.e. end of contract on 06 November).
• Second postponement of the leave period after the 6 months of accident leave: As this is a new case, Mr Dupont again benefits from 180 days of protection (the protection periods apply ‘per case’). We therefore need to count 180 days from 06 November inclusive, which takes us to 04 May.
  The new termination date for Mr Smith will therefore be 4 May (it would have been 31 May if the notice period was ‘for the end of a month’).

How can you be sure you’re doing the right thing?
Managing notice and protection periods is not only complex but also crucial to avoiding disputes.
It’s easy to get lost in the dates and confuse the end of the notice period with the end of the protection period or the end of the employment contract.

At ekspert, we manage this with precision and compliance.
Contact us today for more information about our AdminPack services!