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Undocumented employee: what rules for termination of employment contract?

Verified 02 February 2022 - Directorate for Legal and Administrative Information (Prime Minister)

The employer shall not be entitled to hire or retain in his service a non-European foreigner employee who does not work authorization.

It is also forbidden to hire or keep a foreigner at his service without respecting the limitations that may be mentioned on the work authorization. The limitations may concern the professional category, profession or geographical area.

The employer must terminate the employment contract of the employee who does not have a work permit.

He does not have to comply with the rules concerning the termination of the employment contract (dismissal procedure for a DTA: titleContent or disciplinary sanction for a CSD: titleContent).

He is not obliged to summon the employee to a pre-maintenance.

Nor does he need to ask the labor inspector for permission to dismiss if the employee is staff representative.

A pregnant employee's employment contract may be terminated.

The ground for the termination of the contract of employment does not constitute force majeure.

FYI  

in the event of fraud on the part of the employee and if the employer has carried out the checks on the work permit which appeared to be regular, the employer may apply disciplinary proceedings. He can make a break for gross negligence without payment of severance pay or lump sum.

Where the employer terminates the employment contract of an employee whom he has employed without a work permit, he must pay the employee a lump sum termination indemnity.

The amount of compensation paid depending on whether the contract is a  DTA: titleContent or a CSD: titleContent.

Employee on a permanent contract

The amount of the allowance shall be fixed 

  • or a flat-rate allowance equal to 3 months' pay,
  • or, if more favorable, the cumulative amount of severance pay and notice.

In addition, the employee may request damages to the labor council if he can justify injury.

Please note

in the event of termination of the contract of employment as a result of a concealed work, the employee shall be entitled to a lump-sum allowance equal to six months' pay.

Employee on fixed term contracts

The amount of the allowance shall be fixed 

  • or a flat-rate allowance equal to 3 months' pay,
  • or, if it is more favorable, the aggregate amount of the compensation for wrongful breach of contract and the precarious premium.

In addition, the employee can claim damages from the labor council if he can justify injury.

Please note

in the event of termination of the contract of employment as a result of a concealed work, the employee shall be entitled to a lump-sum allowance equal to six months' pay.

Tableau - Criminal sanctions

Situation

Fine (fixed amount)

Prison sentence (fixed sentence combined with the fine)

Consciously hiring or retaining a foreigner without a residence permit

€15,000 by foreigner concerned

5 years

Consciously hire or retain a foreigner without a residence permit in an organized band

€100,000 by foreigner concerned

10 years

Knowingly engaging directly or indirectly in the services of an employer of a foreigner not permitted to work

€15,000 by foreigner concerned

5 years

FYI  

additional sanctions may also be applied (confiscation of property, inadmissibility, prohibition of practice, additional contributions, etc.).