Newsletter 2025 - 05

1 Office news

2 Case law – manifestly unreasonable dismissal – the employer manifestly unreasonable twice?

Brussels Labour Court, 3 December 2024, www.juportal.be

Is an employee entitled to compensation for manifestly unfair dismissal (KOO) twice if the employer first terminates the employment contract and then terminates it?

According to the Brussels Labour Court, yes.

1. The facts. An employee was terminated on October 27, 2020, with a notice period of 3 months and 21 weeks. Pursuant to collective bargaining agreement no. 109, he requested the reasons for the dismissal, to which the employer did not respond.

The employee was subsequently absent due to illness from November 16 to December 12, 2020 and took 13 days of vacation, suspending the notice period.

By registered letter dated March 26, 2021, the employer terminated the employment contract, citing "economic reasons – the impact of the Covid-19 crisis on the office market in which the employee operates." Document C4 stated: "Savings in the office department – ​​economic reasons."

The employee subsequently claimed two compensations for manifestly unreasonable dismissal, namely for both dismissal actions.

We will not discuss the factual assessment of the manifestly unreasonable nature of the first dismissal. The question here is whether termination with payment of severance pay after a previous termination can also be manifestly unreasonable again.

2. The judgment. The labor court ruled that compensation for manifestly unfair dismissal can indeed be awarded twice.

The court considered that the employer's decision that the employee may no longer perform the employment contract until the end of the notice period can be a significant decision for the employee. It is also possible that this employer's decision is due to reasons other than the employee's previous decision to terminate. According to the court, this means that, under collective bargaining agreement no. 109, the employee also has the right to know from their employer the specific reasons that led to their dismissal with payment of severance pay. Consequently, the court stated, all other provisions of the collective bargaining agreement regarding the communication of reasons and regarding manifestly unfair dismissal also apply.

3. Considerations.

It is noteworthy that the labor court, followed by the labor court of appeal, awarded "only" four weeks' compensation for the first dismissal, but found the "conversion" of the notice period to a termination with payment of the remaining severance pay three times as unreasonable: compensation of 12 weeks was awarded. The labor court's reasoning for arriving at 12 weeks was rather meager:

The court considers, on the one hand, the fact that the employer left the employee completely in the dark about the actual reasons for the dismissal. On the other hand, the amount of compensation depends on the degree of manifest unreasonableness of the dismissal. Where the employer decided to convert the dismissal with notice into one with severance pay, there is no evidence of any special elements pointing to extremely manifest unreasonable conduct on the part of the employer.

b. The judgment leaves open whether the reasons leading to the termination must be different from those that led to the initial dismissal. The way in which the Labor Court treats the manifest unreasonableness of all the reasons invoked as a whole suggests that this is not the case. In any case, the Court nowhere indicates or insinuates that the reasons that led to the termination must be new or different elements than those invoked for the termination. Essentially, "a single lack of a good reason for dismissal" in a two-step dismissal (once with the termination, a second time with the termination) leads to double compensation. The question arises whether the employee actually suffers damage twice.

c. As cited, the judgment states: “The court takes into account, on the one hand, the fact that the employer left the employee completely in the dark about the actual reasons for the dismissal. On the other hand, the amount of compensation depends on the degree of manifest unreasonableness of the dismissal.”

In this way, the court will consider the lack of justification for the dismissal when determining the extent of the compensation. However, collective bargaining agreement no. 109 provides for a separate compensation for the lack of justification (two weeks' wages), and the lack of justification does not in itself make a dismissal any more or less unreasonable, does it?

d. The judgment refers to the fact that the regulation of manifestly unreasonable dismissal is in line with the regulation of arbitrary dismissal for workers, which was regulated in the (repealed) Article 63 of the Employment Contracts Act.

A comparison of case law shows that the flexibility with which claims concerning KOO are granted is at odds with the strictness with which claims for arbitrary dismissal were assessed at the time.

The definition of KOO is the same as that of arbitrary dismissal, except that it has been made even stricter: for manifest unreasonableness, the additional test has been added that the dismissal must never have been decided by a normal and reasonable employer.

The bar for who is considered a "normal and prudent employer" is often set very high in case law. There aren't many employers willing to spend several thousand euros, plus the corresponding social security contributions, on severance pay to an employee if they have no reason to dismiss that employee.

Does this align with the current trend of a dramatic increase in the number of dismissal protections and their application in recent decades, partly due to anti-discrimination laws? Isn't this pendulum swinging too far?

Dirk Heylen, lawyer
dirk.heylen@mploy.be  

Nette Huysmans, lawyer
nette.huysmans@mploy.be  

3 Jurisprudence – refusal of reasonable adjustments – compensation

Brussels Labour Court, 17 March 2025, www.unia.be

If a worker with a disability requests reasonable accommodations, such as a different (administrative) job, the employer must demonstrate that they do not have such a job if they are refused. They must first determine which specific administrative position within the company the employee is eligible for, possibly with adjustments to that position, before checking whether such a position is available.

MM worked for several weeks as a machine operator at a car assembly plant when he suffered a workplace accident on March 19, 2019. The workers' compensation insurer accepted the accident. The insurer's doctor recognized the temporary disability until April 30, 2019. Apparently, there was no permanent disability as a result of the accident, although the ruling is not entirely clear on this point. MM received disability benefits from May 1, 2019. The disability ultimately lasted until March 31, 2021.

The employer initiated a reintegration program on October 21, 2019. The occupational physician decided on January 20, 2020, that MM was definitively unfit for the agreed-upon work, but that he was capable of performing modified or other work (decision C). He made several recommendations, such as no repetitive handling of heavy loads, no work requiring constant standing or walking, no overhead work, and no sitting. Sedentary work was permitted.

The consultation between MM and his employer regarding modified work subsequently proved very difficult. Finally, on February 11, 2021, the employer sent MM a report explaining why it was impossible to propose a reintegration plan. In the report, the employer elaborated on the impossibility of adapting MM's workstation to his limitations and the lack of a workstation that accommodated these limitations, particularly the requirement for sedentary work.

MM disagrees. He points out that insufficient investigation was conducted to determine whether a position solely involving administrative work was available. He resigned on March 27, 2021. He left the company on May 16, 2021.

MM goes to court and claims 6 months' compensation (18,442.30 euros) for discrimination on the grounds of disability and a provisional compensation of 10,000 euros for violations of the Well-being at Work Act.

In a judgment dated June 26, 2023, the labor court ordered the employer to pay €1 in non-pecuniary damages and dismissed the other claims. The court found that MM indeed has a disability but ruled that the employer was not guilty of refusing reasonable accommodations.

The court disagrees. It finds that the employer has not proven that the "reasonable adjustments" requested by MM, i.e., reassignment to a different – ​​administrative – position, would constitute a disproportionate burden. This would be the case if the requested adjustments were technically or objectively impossible.

According to the court, there was no actual consultation about reintegration between the employer, employee, and occupational physician. It concludes this, among other things, from the fact that these three parties never met.

The court's very detailed analysis shows that it sets the bar very high for the employer. The employer should have investigated (and documented!) whether it had any job positions within its entire company where it could employ MM – with the necessary adjustments – either in production or administration. Whether or not there was a vacancy in administration is irrelevant to the court, because the employer did not investigate what type of position MM could still be considered for with the necessary adjustments to the job position. The ruling shows that all vacancies were advertised internally..

The court refers to the case law of the Court of Justice. In its judgment in HR Rail of 10 February 2022, the court went considerably further than previous case law regarding the obligation to provide reasonable accommodation. Two considerations of the Court of Justice are relevant here:

“48. It should also be noted that, as the Advocate General stated in point 77 of his Opinion, the possibility of appointing a person with a disability to another post only exists, in any event, where there is at least one vacant post which the worker concerned can fill.

49. In the light of the foregoing, the answer to the question referred is that Article 5 of Directive 2000/78 must be interpreted as meaning that the concept of “reasonable accommodation for disabled people” within the meaning of that article means that a worker (…) who, on account of his disability, has been declared unfit to perform the essential functions of the job in which he performs must be assigned to another job for which he has the necessary skills and abilities and for which he is available, provided that that measure does not impose a disproportionate burden on the employer.”

As the judgment under discussion shows, the Court in Luxembourg has opened Pandora's box and given the judge even more scope to take the employer's place.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be