Constitutional Court does not allow the infinite use of successive short term employment contracts and replacement contracts

The Constitutional Court ruled that Articles 10 and 11ter, §1, fifth paragraph, of the Employment Contracts Act violate the principle of equality. These provisions prohibit the conclusion of temporary employment contracts and replacement contracts for longer than (in principle) two years, but such a prohibition does not apply if temporary employment contracts are alternated with replacement contracts. The Flemish Community had thus employed a clerk for sixteen years alternating between temporary employment contracts and replacement contracts. At the end of the last employment contract in 2017, the clerk was not entitled to a dismissal notice or compensation, according to the Flemish Community.

However, according to the Constitutional Court, the difference in treatment between consecutive temporary employment contracts or replacement contracts separately and the situation where these contracts are alternated with each other cannot be justified. In this way, an employer can deny the employee job security for years and the legislator thus allows a certain abuse of successive short-term contracts. Moreover, the Court attaches little value to the argument that an employee could take action against the excesses of a long-term use of temporary contracts by invoking the principle of “abuse of rights”. After all, in many cases it will not be possible for the employee to prove that the employer wanted to circumvent the law. It is precisely to remedy this problem of proof that the legislator introduced the presumption of an employment contract for an indefinite period in the Article 10 of the Employment Contracts Act at issue.

The legislature must now get to work to amend the relevant provisions of the Employment Contracts Act. In the meantime, the referring court may apply the maximum duration of two years to such situations. In the case of a longer duration, the employee will have been deemed to be hired with an employment contract of indefinite duration.

Source: Constitutional Court 17 June 2021, no. 93/2021