In Belgian law, there are certain periods of employment during which there are greater than usual restrictions on an employer’s ability to dismiss an employee. These include periods of maternity, parental and other types of care leave. Parting company with employees during any period when they are protected against dismissal can become a costly affair, as a protection indemnity will be due on top of the statutory severance payment. In most cases, this protection indemnity amounts to six months’ salary. These indemnities are unashamedly penal in nature and do not require the employee to have suffered any equivalent financial loss from the termination. In recent years, however, employees have attempted to argue that their termination infringes not just one but several legal provisions, and that they are therefore entitled to not just one but several such indemnities.

To aggregate or not to aggregate, that is the question

This argument has come to a head in a recent decision of the Antwerp Employment Court, which confirmed the decision of the Employment Tribunal to award not one, not two, but three indemnities to an employee who had been terminated while she was suffering from postnatal depression. The Employment Court first considered that the employee was entitled to an indemnity in respect of the employer’s flouting the protection the employee still enjoyed following her return from maternity leave (the protection period spans one month after the end of the postnatal leave), because the employer could not prove that the termination was not related to the pregnancy or maternity leave. In addition, however, the Court ruled that the termination also constituted discrimination on the basis of gender and separately also on the basis of health status. On the basis of gender because, in accordance with the Gender Act, direct discrimination on the basis of pregnancy, childbirth or maternity is deemed also to be direct discrimination on the basis of gender. Since neither of the statutory provisions providing for the indemnities states that they cannot be aggregated, the Court awarded all three indemnities.

While at the time of termination in the decision, there could still be room for debate as to whether these indemnities can be aggregated, following a number of legislative changes in 2023, the principle of the matter is now beyond dispute:

1. The Gender Act explicitly states that the indemnity it awards may be paid on top of protection indemnities awarded following termination of the employment contract.
2. The notion of cumulative discrimination was introduced in the Discrimination Act, described as the situation that occurs when a person is discriminated against as a result of multiple protected criteria that add up, but remain separable (e.g. being discriminated against for being an older man). If cumulative discrimination is established, the Employment Tribunal should assess whether it is appropriate to award multiple indemnities. The Tribunal has full discretion in this regard, the only restriction being that at least one (6 or 3 month) indemnity should be awarded.

Aggregation, but not always

Cumulation appears to be the topic du jour in termination cases, also in other areas, but the outcomes tend to differ.

In another recent case, a dismissed employee representative on the works council tried to argue that he was entitled protection indemnities both for unlawful termination of an employee representative (up to 8 years’ salary) and for discrimination on the basis of trade union membership.

The Ghent Employment Court ruled that those indemnities could not be cumulated, as the legal provisions on which they are based have the same purpose, namely compensating the damage caused by the adverse treatment due to trade union membership/activities – in other words, only a single injustice had been done.

Another area of continuing debate is the question of whether the indemnity for manifestly unreasonable termination should overlap with a discrimination indemnity. Collective Labour Agreement nr. 109, which introduced the notion of manifestly unreasonable termination, states that the indemnity cannot be paid on top of any other compensation payable by the employer as a result of the termination of the employment contract (with the exception of severance pay, payment in application of the non-competition clause, the client loss indemnity for sales representatives or additional compensation paid in addition to social security benefits). While the majority of courts and tribunals rely on this provision to exclude cumulative indemnities, some (mostly in the French-speaking parts of the country) have ruled that that provision in CLA nr. 109 is not in compliance with higher sources of law, and can therefore be disregarded. This strand of case law allows cumulative payments if it is deemed that the indemnities claimed do not serve the same purpose and do not compensate for the same damage.

In conclusion

The above trends and changes emphasise once again the importance of having (or building) a strong case before an employee is terminated. It is essential to have a good (non-discriminatory) reason for the termination, especially for those employees who you know will or may seek the benefit of protected status, but it is at least as important also to be able to prove it. The burden of proof is almost entirely on the employer to disprove reliance on an inadmissible reason, so evidence is all. If there is no sufficient proof, the consequences for the employer can be painful, and that pain has potentially doubled or tripled in recent months.