Constitutional Court weighs in on dismissal during temporary part-time leave - International Law Office

Basic rules
ECJ decision
Constitutional Court decisions

For the past few years, controversy has arisen over the calculation of severance pay for workers who are dismissed by their employer during a temporary part-time period. In two recent decisions, the Constitutional Court has put an end to this uncertainty.

Basic rules

As a rule, employers may unilaterally terminate employment contracts concluded for an indefinite period by implementing a notice period during which the work specified in the contract continues to be performed. If the worker is dismissed without notice, the employer must pay indemnity in lieu of the notice period (unless the worker is dismissed for serious cause, in which case the contract ends immediately, without notice or indemnity). Indemnity in lieu of a notice period must be calculated on the basis of:

• the notice period that should have been given; and
• the remuneration to which the worker is entitled at the time of dismissal.

On the other hand, Belgian law provides for several possibilities for employees to work part-time on a temporary basis. During that period, employees generally receive a part-time salary and financial compensation from the government.

According to case law, a worker dismissed without notice during a temporary part-time period is entitled to indemnity (in lieu of a notice period) that is calculated on the basis of his or her part-time salary. The fact that he or she would have reverted to a full-time salary after the temporary part-time period has no bearing on the case.

ECJ decision

On October 22 2009 the European Court of Justice (ECJ) issued the Meerts decision, which contradicted Belgian case law.

The EU Framework Agreement on Parental Leave states that employees retain their rights throughout the duration of the leave.(1) In Meerts the ECJ held that this rule:

"must be interpreted as precluding, where an employer unilaterally terminates a worker's full-time employment contract of indefinite duration, without urgent cause or without observing the statutory period of notice, whilst the worker is on part-time parental leave, the compensation to be paid to the worker from being determined on the basis of the reduced salary being received when the dismissal takes place."

In other words, if an employer unilaterally terminates the contract of a full-time worker on part-time parental leave without prior notice, the worker's compensation must be calculated on the basis of his or her full-time remuneration. After Meerts, Belgian legislation was modified expressly to stipulate this rule.

However, it has been suggested that if the consequences of Meerts were limited to part-time parental leave, this would constitute discrimination between workers benefiting from such leave and those benefiting from temporary part-time leave in a different context (eg, to care for a seriously ill family member).

Constitutional Court decisions

In decisions of November 10 2011 and July 12 2012, the Constitutional Court held that:

• Meerts, together with its implementation into Belgian law, was clearly restricted to parental leave, as it is based on EU law; and
• it was not obviously unreasonable to calculate indemnity owed to a worker on temporary part-time leave other than parental leave on the basis of a part-time salary, since the law already provides sufficient protection. On the one hand, the notice period to be taken into consideration is determined as though the worker had not reduced his or her working hours or salary (normally, the duration of the notice period depends on the salary level); on the other hand, the worker also benefits from specific protection against dismissal (ie, he or she can be dismissed only for reasons unrelated to working part-time temporarily – otherwise, the employer must pay six months' indemnity in addition to the indemnity in lieu of notice).

It is noteworthy that the Constitutional Court should consider that the EU legislation on parental leave, as interpreted by the ECJ, justifies a difference in treatment for dismissal without notice between workers on parental leave and those on temporary part-time leave for other reasons.

For further information on this topic please contact Stéphane Baltazar or Chris Van Olmen at Van Olmen · Wynant by telephone (+32 2 644 05 11), fax (+32 2 646 38 47) or email (stephane.baltazar@vow.be or chris.van.olmen@vow.be).

Endnotes

(1) The Framework Agreement on Parental Leave was concluded on December 14 1995 and annexed to EU Directive 96/34/EC of June 3 1996 on the framework agreement on parental leave, as amended by EU Directive 97/75/EC of December 15 1997.