Do you have a right to some days of for searching a new jobs (Trends 26-5-2022)Posted the 25 June 2022
The article of Mr Delmarcelle in the Trends dated 26-5-2022 re the days for searching a new job
During the notice period, I have the right to take time off to look for a new job. Is this also the case if I resign? What if I find a job during the notice period? Can the employer demand proof and must I notify him before the absence? Can I postpone the days not taken?
The law on employment contracts of July 3, 1978 provides for the right of the worker to be absent during the notice period, with maintenance of his remuneration, for both employees and workers in order to seek employment (article 41).
This right can be exercised during the last 26 weeks of the notice once or twice a week for a maximum of one day per week. For the previous period, job search leave is limited to half a day per week. Unless the worker is entitled to a professional reclassification in the general system, i.e. if he has more than 30 weeks' notice or in the special system for those over 45, in which case he is entitled to leave one to twice a week for a maximum of one day during the entire notice period.
For part-timers a pro rata is applied.
The right is acquired per week, so we cannot capitalize absences not taken.
To benefit from this right, it is sufficient for the worker to be on notice, regardless of whether he has resigned or been dismissed, whether he is employed under a permanent or fixed-term contract or even whether he has reached the age of the pension.
On the other hand, the absence is authorized only in order to seek a job. The worker caught doing something else (shopping, tennis, etc.) is therefore exposed to the loss of his salary or even to dismissal for serious misconduct. However, it is up to the employer to provide proof of the lack of justification for the absence. However, this proof is difficult. Especially since judges broadly define job search (interviews, CV preparation, search for offers, etc.
The same judges, however, consider almost unanimously that the right ceases when the worker has a new job (with the signing of a contract or written offer, otherwise it is not certain). However, Minister Hansenne had left an open door by indicating, in 1986, that this right could still subsist in this case, the worker being able to wish to find an even better job. Position confirmed in 2011 following a parliamentary question from Mrs Zemir.
In addition, case law admits that the worker has the right to the protection of his private life and that the employer cannot therefore compel him to justify the reason for his absence.
The employer cannot limit the right by imposing prior authorization, justification of the reason for the absence (the worker has the right to discretion) or by limiting the times when absences can be taken. In general, the worker does not have the obligation to inform the employer and, even if the ideal is to agree on the calendar of absences, it is the interest of the worker which takes precedence over the requirements of the company. . However, if the worker voluntarily disrupts it, he exposes himself to a claim for damages for abuse of rights.