Parental leave - Calculation of a protective award according to the Court of Justice of the European Union

On 27 February 2014, the Court of Justice of the European Union ruled on the method of calculating the amount of the protective award payable to a worker who was dismissed without compelling or sufficient reason during part-time parental leave. 

There used to be a huge amount of judicial controversy over the question of calculating severance pay during part-time parental leave.  

The Belgian Court of Cassation and then the Constitutional Court had both considered that in such case, compensation must be calculated on the basis of the salary in force at the time of dismissal, i.e., on the basis of the current salary for part-time working hours.  

Following an appeal brought before the Court of Justice of the European Union, this Court considered, on the contrary, that the calculation of severance pay under parental leave that is taken on a reduced working hours basis must be based on the salary to which the worker would have been entitled if he had not reduced his working hours, i.e., in principle, on the basis of his full-time salary (C.J.E.U., 22 October 2009, Ch. Meerts v Proost NV, Case C-116/08, J.T.T.  2010, p. 52). 

To comply with European law, the Belgian lawmakers immediately modified § 3 of Article 105 of the Law on financial stabilisation containing social provisions of 22 January 1985.  

Now, more precisely since 10 January 2010, when an employment contract is terminated with payment of severance pay at a time when the worker is availing himself of arrangements for reduced working hours under parental leave, the payment in lieu of notice must be calculated on the basis of the salary to which the worker would have been entitled if he had not reduced his working hours, i.e., in principle, on the basis of his full-time salary.  

According to certain authors, it could not be inferred from the C.J.E.U.'s judgment in the case of Meerts v Proost NV (see above) that the protective award equal to 6 months' salary payable to the worker on part-time parental leave should also be calculated on the basis of the salary in force before taking part-time parental leave. 

That is why, in proceedings between a Belgian company and a worker who was unlawfully dismissed during parental leave, the Labour Court (Arbeidshof) of Antwerp made in 2012 a request for a preliminary ruling concerning the calculation of the fixed-sum protective award payable because of an unlawful dismissal during part-time parental leave to the Court of Justice of the European Union. 

The Court of Justice of the European Union has recently delivered its judgment. It considers that the fixed-sum protective award as provided for by the Belgian legislation (i.e., 6 months' salary) and payable to a worker granted part-time parental leave must also be determined, in the event of unilateral termination by the employer without compelling or sufficient reason, on the basis of the full-time salary of that worker (C.J.E.U., judgment of 27 February 2014, Lyreco Belgium NV v Sophie Rogiers, Case C-588/12, (www.curia.europa.eu). 

Without doubt, the protective award must, therefore, be calculated in the same manner as ordinary severance pay, i.e., on the basis of the salary in force prior to taking part-time parental leave.  

Author: Francis Verbrugge

20/08/2015