As of 10 January 2010, new rules have to be applied when calculating compensation for the dismissal of workers with reduced working hours during a parental leave.[1]
Prior to the change in the law, Belgian case law showed that, in case of termination of the employment contract during a period of parental leave, the notice period had to be calculated on a full-time basis, while compensation for dismissal was to be calculated based on the actual salary, which refers to the salary the worker was entitled to at the time of termination of the employment contract, i.e. his part-time salary.
In its judgment of 22 October 2009, the European Court of Justice concluded that the European Parental Leave Directive[2] precludes 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 conformity with the aforementioned decision, the Belgian legislation now clearly states that any worker being dismissed, without urgent cause or without a statutory period of notice, when on part-time parental leave, must receive a compensation determined on the basis of the full-time salary earned prior to the part-time parental leave.
The new provision only applies when an employer unilaterally terminates a full-time employment contract whilst the worker is on part-time parental leave and does not affect any other regime of time-credit or family leave.
[1]Further to the entry into force on 10 January 2010 of article 90 of the Law of 30 December 2009 amending article 105 of the Law of 22 January 1985 including social provisions.
[2]Directive 96/34/EG of 3 June 1996.
