La "période de protection occulte" arrive.
Do not proceed with dismissals after 31 December 2019
The social elections procedure starts in December on Day X-60 with the official announcement by the employer of the technical operation unit, the number of employees, the managing personnel and the date of the election day.
As an employer, you will however have to wait until Day X+35 to know who of your workers is candidate for the social elections. On Day X+35, the lists of candidates must be submitted by the trade unions. Depending on the election date in your organisation, this day takes place between 17 March 2020 and 30 March 2020.
The candidates however benefit from a protection against dismissal as from Day X-30, which falls at the earliest on 12 January 2020 and at the latest on 25 January 2020. This means that during a period of 65 days, these candidates are already protected against dismissal while you are not yet aware of their candidacy. This is the notorious “occult protection period”.
Under specific circumstances, candidates can still be replaced until Day X+76. If you want to avoid any risk of dismissing a protected candidate, a cautious employer will await the expiry of that period before proceeding with any dismissal.
The sanction of dismissing a candidate during this occult protection period can amount to + 8 years of salary (depending on the seniority of the candidate). Therefore, if you are considering terminating certain employment contracts, please do it as soon as possible and prior to the end of 2019. Of course, do not forget to verify whether the workers concerned benefit from any other protection against dismissal (because they were candidate for the 2016 social elections, member of the trade union delegation, etc.).
Dismissals for serious grounds, but only in exceptional circumstances and with respect of specific procedures. Please contact us in advance in those cases.