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Lawful lending of staff? Yes, during the notice period: the transition trajectory

Publications | Employment Law Team

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One of the measures under the current government's ‘labour deal’ is the introduction of the “transition trajectory”.

Such transition trajectory allows the employer to lend the employee to another employer (the “employer-user") during the notice period, in the event of redundancy by the employer. The transition trajectory can be requested either by the (original) employer or the employee.

A transition trajectory thus constitutes an exception to the prohibition on lending of staff.

There is no enforceable right to a transition trajectory. A transition trajectory requires written contractual arrangements with four parties: (1) the employee, (2) the current employer, (3) the employer-user and (4) an employment intermediary (e.g. a temporary employment agency). This must include the conditions and duration of the lending of staff.

Still, the transition trajectory can be combined with the right to job seeking leave, but the employee is not allowed to abuse it.

A transition trajectory works as follows: The employer pays the wages applicable with the employer-user for the position the employee holds there or pays the current wages for the position with the employer itself if these exceed the remuneration with the employer-user. The employer-user must in turn compensate part of these wages by payment to the employer. The extent of this compensation by the employer-user is not determined by law. Both employers must agree on this: the employer-user pays only the difference between the current and the increased wages, pays a portion of the total remuneration, etc.

When the transition trajectory is completed, the employer-user must hire the employee with an employment contract of unlimited duration. If this obligation is not complied with, the employer-user must pay an indemnity equal to the current salary for half the term of the transition trajectory.

The employer-user may terminate the lending on the condition of respecting the normal legal notice periods based on the seniority as of the beginning of the transition trajectory. After the notice period, the employee will simply return to his job with the original employer for the performance of the remaining (original) notice period.

Finally, what is the added value of such a transition trajectory? The employers (original employer and employer-user) can agree to split the salary burden which they are both comfortable with. The employer-user can try out a new worker, without excessive notice periods if he wants to stop the lending. For the employee, it creates the perspective of a new employment contract.

The legislation still needs further implementation by means of a royal decree (e.g. regarding the minimum duration of a transition trajectory). This royal decree is currently not yet in place.

We will follow the matter closely and keep you informed!

For more detailed information about this new transition trajectory please contact our employment law team.