The Employment Contracts Act does not explicitly define what a working day is
There are many provisions in the Employment Contracts Act that refer to “working days”. In this respect, (i) article 31 states that the employee must submit his/her medical certificate to his/her employer within two working days from the start of the work incapacity (unless the work rules provide otherwise), (ii) article 35 stipulates that a dismissal for just cause must take place within three working days from the day that the employer knows the facts and that the written explanation of the reason(s) for the dismissal for just cause must be given within three working days following the dismissal, and (iii) article 37 stipulates that a registered letter giving notice takes effect on the third working day following the date that the letter was sent.
However, the Employment Contracts Act does not further specify what exactly is to be understood by “working day”. Referring to a comment in the Explanatory Memorandum to the Employment Contracts Act and to the Act on Annual Holiday, it has so far been “generally accepted” that working days are all the days of the week except for Sundays and public holidays, i.e. including Saturdays. This means, for example, that:
(i) if the employer becomes aware of serious acts committed by an employee, Caro, on Wednesday, it must dismiss her for just cause on Saturday at the latest, and the HR manager must go to the post office on Saturday to have the dismissal letter sent by registered mail;
(ii) the letter giving notice to an employee, Vince, must be sent on Wednesday at the latest for the notice period to start on the following Monday; and
(iii) if an employee, Camille, becomes ill on Friday, she has to send her medical certificate to her employer on Saturday at the latest, even though her company only operates from Monday to Friday.
However, from next year, these situations will change.
Saturday is no longer considered a working day in the Civil Code
Article I.7, §3 of the new Civil Code contains the following (emphasis added): “Working days are all days other than public holidays, Sundays and Saturdays”. This new rule applies on the condition that no other specific law derogates from it. Since the Employment Contracts Act still does not explicitly state what exactly is to be considered as a “working day”, one has to refer back to the new Civil Code, unless the legislator would introduce a different definition of “working days” in the Employment Contracts Act. This new rule will enter into force on 1 January 2023.
In practice, this will mean in the examples above that:
(i) if Caro's employer becomes aware of the facts justifying a dismissal for just cause on Wednesday, then from 1 January 2023 Caro will only have to be dismissed on Monday at the latest instead of Saturday, which means that the employer has an extra weekend to think about this dismissal;
(ii) the letter giving notice to Vince has to be sent on Tuesday instead of Wednesday, which means that the employer has to send the letter giving notice a day earlier than usual for the notice period to start on the following Monday; and
(iii) Camille, who fell ill on Friday, only has to send her medical certificate to her employer on Monday instead of Saturday.
Better safe than sorry
Until the end of 31 December 2022, everything will remain the same. Saturday is, unfortunately for many, a working day in the current state of labour law and must therefore be taken into account to calculate legal deadlines under the Employment Contracts Act.
From 1 January 2023, the new rules included in the new Civil Code will apply. However, the new Civil Code stipulates that Saturday is not a working day “unless another specific law would stipulate otherwise”. There is yet no definite answer as to what should be considered as “another specific law”. As noted above, the Employment Contracts Act does not explicitly define what should be considered as a working day. Yet, the Explanatory Memorandum of the Employment Contracts Act states that Saturday is a working day, and there are other legal texts within the field of labour law that implicitly refer to Saturday as a working day (e.g. the Annual Holiday Act). Although unlikely, it cannot be entirely excluded that the labour courts would qualify this as “another specific law” and still consider Saturday as a working day.
Since the new regulations have not yet entered into force, the labour courts have not been able to rule on the exact interpretation of the new Civil Code. Therefore, as long as there is no final decision on the matter by the labour courts, we recommend being cautious and to always apply the most advantageous option for the employee. In practice, this means that from 1 January 2023:
(i) in the case of a dismissal for just cause, Saturday is still to be considered as a working day and should therefore be taken into account for the calculation of the double three-day period;
(ii) the letter giving notice must be sent at the latest on Tuesday instead of Wednesday for the notice period to start on the following Monday; and
(iii) no immediate penalty should be given to employees who do not take the Saturday into account for submitting their medical certificate.
Of course, we will keep you informed as soon as the labour courts clarify this matter or if the Employment Contracts Act would in the meantime be amended.