Most case law in employment matters relates to the termination of employment contracts by employers.
Recently, two significant rulings have been issued, both of which have a substantial impact on HR practices.
The first decision, made by the Brussels Labour Court on April 29, 2024, concerns age discrimination in the context of an employer terminating an employment contract due to the employee reaching statutory pension age.
According to Article 37/6 of the Belgian Employment Contracts Act (3 July 1978), the employer must provide a specific notice period of at least 26 weeks when terminating an indefinite employment contract. The termination of the employment contract can only be effective at the earliest on the first day of the month following the employee’s statutory pension age.
The Brussels Labour Court re-emphasised the condition as stated by the Belgian Supreme Court that the specific notice period can (only) start at the earliest 26 weeks before the first day of the month following the month in which the employee reaches the statutory pension age.
In the case at hand, the notice period of 26 weeks was notified too early and ended just a few days before the end of the month prior to the start of the statutory pension.
The Labour Court states that any statutory suspensions of the notice period (such as for holidays or illness) cannot be counted toward the notice period. In other words, it is required that the end of the minimum statutory notice period of 26 weeks as such meets the legal requirement, without taking into account any periods of suspension of the notice period.
As the notified notice period ended too soon, the applicable notice period should be calculated based on the general principles set out in Article 37/2 of the Employment Contracts Act.
Furthermore, the court ruled that the termination in the said case constituted age discrimination, partly because the employer incorrectly applied the notice period provided in Article 37/6 and could not demonstrate other reasons to justify the termination of the employment contract. As a result, the employer must pay an additional compensation equivalent to six months’ salary.
A second significant case was decided by the Antwerp Labour Court on July 9, 2024, which involved the new statute of limitations for criminal offences, including social offences, under the Law of April 9, 2024.
This law, effective from April 28, 2024, affects all claims (based on a criminal offence) not yet time-barred at that date.
Under Article 15 of the Employment Contracts Act, a (former) employee has one year to bring a claim related to the termination of this/her employment contract.
However, claims based on a criminal offence (such as violations of a collective bargaining agreement with general binding force) cannot be time-barred before the criminal claim is.
For most social offences, such as failure to comply with sectoral collective bargaining agreements, the criminal claim is time-barred only after 10 years. Before the change, the statute of limitation was set at 5 years.
In this particular case, the employer and employee had agreed in 2016 to a reduction in the employee’s gross salary. In return, a company car and fuel card were made available to the employee.
While such an arrangement is generally valid if properly formalised, the employee’s new gross salary did not meet the sector’s minimum remuneration threshold.
As a result, the employee sought to recover the salary arrears.
First, the court ruled that the (private) use of the company car cannot be considered as “remuneration in kind” in the meaning of the Salary Protection Act and should therefore be disregarded.
The court further ruled that the failure to comply with the sectoral regulations (respecting the determined minimum wage) constituted an ongoing criminal offence. Therefore, the 10-year statute of limitations not only began when the breach ended, which occurred when the employment contract was terminated, but also all areas could be claimed.
If you have any questions or require assistance, feel free to contact Alexis Ceuterick at alexis.ceuterick@simontbraun.eu.
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This newsletter is not a legal advice or a legal opinion. You should seek advice from a legal counsel of your choice before acting upon any of the information in this newsletter.
