The introduction of artificial intelligence (AI) in companies is profoundly changing the way work is organised and how production takes place. While these technological innovations offer considerable efficiency gains, they also raise sensitive legal issues, particularly when they lead to the replacement of certain employees.
CLA 39: a prior obligation of information and consultation
Collective Labour Agreement 39 of 13 December 1983 specifically regulates the social consequences of introducing new technologies. It applies to all employers with more than 50 employees.
Employer obligations
The employer must comply with the following obligations under this agreement no later than three months before the new technology is implemented:
- Provide written information to employee representatives on:
- the nature of the new technology;
- the reasons for its introduction;
- the anticipated social repercussions.
- Organise a consultation with these representatives to discuss these impacts and any accompanying measures.
Consequences of non-compliance
Failure to comply with this procedure deprives the employer of the right to unilaterally terminate contracts for reasons related to this technology.
If the employer nevertheless proceeds with a dismissal without having complied with the information and consultation procedure, they will be required to pay the employee concerned a lump sum compensation equivalent to three months' gross remuneration.
Manifestly unreasonable dismissal
When an employee is dismissed with a view to being replaced by an AI system, and regardless of the application of CLA No. 39, the employer may be ordered to pay compensation for manifestly unreasonable dismissal.
This compensation varies from 3 to 17 weeks' pay and may be added to the notice period compensation owed to the employee.
A dismissal is considered manifestly unreasonable when:
- it is based on grounds unrelated to the employee’s ability or conduct;
- or which do not meet the operational needs of the company;
- and a normally prudent and reasonable employer would not have taken such a decision.
Replacing an employee with AI: a valid reason?
Yes, under certain conditions.
In practice, it will be up to the employer to demonstrate that the dismissal meets the ‘operational needs’ of their company.
This is a factual question. However, it should be noted that case law recognises that digitalisation or automation, including through AI solutions, may render certain positions redundant, without this in itself constituting manifestly unreasonable dismissal.
Conclusion: an essential legal framework
The integration of artificial intelligence within companies can only be envisaged in strict compliance with the legal obligations of information, consultation and justification.
Replacing an employee with AI is only legally secure if it is based on a real, objective and properly documented reorganisation. Otherwise, the employer exposes itself to significant risks of dispute and sanctions.
Vincent MARCELLE et Zazie PIROTTE, Avocats MOSAL
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