Newsletter 2025 – 10

1 Office news

2 Jurisprudence – fairness as a source of law?

Court of Cassation, 20 October 2025, S.24.0038.N, www.juportal.be

Equity cannot serve as a source of law for awarding compensation for services that exceed the normal services of a director of a social housing company.

The dismissed general manager of a social housing company claimed a significant amount in overtime pay. The Antwerp Labor Court of Appeal determined in the contested decision that the manager's workload "was inhumanely high throughout the entire employment period." The rules of the Labor Act regarding working hours were not applicable, so—according to the Labor Court of Appeal—the wages, in principle, compensated for the entirety of the work performed. "A normal variation in work performance will not, in principle, justify additional pay." Given the inhumanely high workload, the Labor Court of Appeal ruled that, on the grounds of fairness, the manager was entitled to compensation for the overtime that could not be considered a normal variation in work performance. The Court of Appeal described fairness as follows: "Fairness is a form of law externalized in a legal principle of lawfulness and reasonableness as intuitively perceived and interpreted, but supported by a general sense of justice."

The Court of Cassation overturned that ruling in its judgment of October 20, 2025. In it, the Court cited Article 1135 (old) of the Civil Code, which stipulates that "agreements are binding not only to what is expressly stipulated therein, but also to all the consequences that equity, custom, or the law attribute to the obligation, according to its nature." It then added: "The court may not, on grounds of equity, deviate from the mandatory provisions of the law."

The salary of a director of a social housing company is determined by decrees of the Flemish Government. The Court of Cassation has determined that these are binding decrees, so the labor court could not award a higher salary on grounds of fairness.

In the new Civil Code, Article 5.71 has replaced Article 1135 (old) BW. It stipulates: “A contract binds not only to that which has been agreed therein, but also to all consequences attributed to it by law, good faith, or custom, in accordance with their nature and purport.” Equity has been dropped. In the explanatory notes to the legislative proposal containing Book 5 “Obligations,” one reads: “The concept of ‘equity’ has been deleted and replaced by the concept of ‘good faith’ (incidentally, equity per se cannot be applied by the judge to supplement or modify the contract).”

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

3 Jurisprudence – its use as a source of law?

Court of Cassation, 8 December 2025, S.19.0064.F, www.juportal.be

A custom will only be incorporated into the employment contract if it is generally recognised as being applicable in a particular region or in a particular profession.

In December 2012, Editions de l'Avenir informed its employees that for 40 years, until 2011, it had mistakenly included the year-end bonus in the calculation of double holiday pay. It had decided to discontinue this practice effective May 1, 2013.

The SETCA trade union did not agree to this, and in January 2016, a staff representative claimed payment of the outstanding double holiday pay for 2013, 2014, and 2015 before the Labour Court in Namur. The court ruled in his favor. The Labour Court of Appeal declared the appeal unfounded. In doing so, it referred to Article 1135 (old) of the Civil Code (see above), which states that “agreements bind not only to that which is expressly stipulated therein, but also to all consequences which are attributed to the obligation, according to its nature, by equity, custom , or law”. The Labour Court of Appeal held that the conditions for speaking of a custom had been fulfilled and that that custom had been incorporated into the agreement and could not be unilaterally changed by the employer.

The employer appealed to the Supreme Court and was proven right (after 6 years).

Loosely translated, the Court of Cassation – as in older judgments – defines the use referred to in Article 1135 (old) of the Civil Code as follows: “Use within the meaning of these provisions means the use that is generally recognised as applicable in a particular region or in a particular profession, so that the parties are deemed to be aware of it and, by not excluding it from their agreement, are deemed to have included it in it.”

The labor court had only determined that the practice in the company was general, consistent, and established. It had not, therefore, established that it was generally recognized in a particular region or within a particular profession.

The Court of Cassation thus indicates that a distinction must be made between, on the one hand, the practice referred to in Article 1135 (old) of the Civil Code (now Article 5.71 of the Civil Code) that is incorporated into the employment contract, and, on the other hand, the practice referred to in Article 51 of the Collective Bargaining Agreement Act (CBA) that is not (necessarily) incorporated. Legal doctrine sometimes distinguishes between legal practices and actual practices. This distinction is, of course, not without significance. The employer cannot unilaterally change practices within the meaning of Article 1135 (old) of the Civil Code, as they form part of the employment contract. However, the employer can terminate the practice referred to in Article 51 of the CBA Act, as Editions de l'Avenir had done. After 10 years of litigation, they knew they were entitled to do so…

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

4 Jurisprudence – bus driver with alcohol addiction

Antwerp Labour Court (Hasselt division) 13 December 2019, www.unia.be

The dismissal of an alcoholic bus driver following a declaration of incapacity for work for six months does not constitute discrimination on the basis of health condition.

A bus driver for De Lijn struggled with a persistent alcohol addiction. During his employment, he tested positive several times during breathalyzer tests. He had already received several disciplinary sanctions for this alcohol abuse, ranging from a limited suspension of his employment contract to the temporary revocation of his "lineman" status.

In consultation with De Lijn, a treatment plan was initiated, which included having the driver undergo monthly blood tests by the occupational physician. The follow-up process was not smooth: the employer had to remind the employee of these appointments and ensure they were followed up promptly on several occasions. The necessity of this was evident from the fact that some checks led the occupational physician to declare the employee unfit for work.

Following yet another periodic check of the blood results, the occupational physician was obliged to declare the driver unfit for work for a period of six months.

Upon receiving this news, De Lijn's patience was exhausted. They terminated the employment contract with payment of the legally required severance pay. The direct cause – as stated in the dismissal letter – was the driver's persistent alcohol problem, which he seemed unable to overcome.

The driver disagreed with this dismissal decision. He believed his dismissal was directly based on his health, which is a protected criterion under the Discrimination Act. The dismissed driver went to the labor court to claim a lump sum compensation equal to six months' wages.

During the proceedings, De Lijn did not conceal that the bus driver's health problem was the basis for its decision to terminate the employment contract. This was also explicitly stated in the dismissal letter. According to the burden of proof rules in discrimination law, De Lijn was responsible for demonstrating that it had not committed a discriminatory act by implementing the dismissal. In this regard, it is crucial to determine the grounds for discrimination invoked. The driver based his claim (exclusively) on the protected criterion of "state of health." For this ground for discrimination, there is a so-called "open justification system," which means that the alleged discriminator can avoid a conviction if they succeed in demonstrating that the unfavorable treatment is based on a legitimate aim and that the means of achieving this aim are appropriate and necessary.

De Lijn passed this justification test before the labor court. According to the court, the dismissal was the culmination of years of monitoring and guidance for a driver who had to be suspended several times during this process due to non-compliance with agreed-upon agreements. In other words, the positive (CDT) blood test, which directly led to a new six-month period of incapacity for work, was merely the proverbial straw that broke the camel's back.

The Labour Court emphasizes that it is part of a bus driver's core duty to transport passengers safely to their destination, and the bus driver could not provide that guarantee. De Lijn's sustained efforts in dealing with its employee's alcohol addiction, together with the consideration that the safety of passengers and other road users must always remain paramount, mean that the adverse treatment was justified. In an obiter dictum , the Labour Court further notes that it must also be accepted that, even in a larger enterprise—such as De Lijn—the absence of an employee lasting several months has implications for the day-to-day operations of the company, particularly in a sector that is constantly under pressure regarding staffing levels.

The employee's claim is dismissed (as is his subordinate claim for compensation for manifestly unfair dismissal).

This concerns one of the first – the first ? – published cases in which a substance-addicted employee takes his dismissal to the labor court with a discrimination claim based on this. What was remarkable here was that the dismissed employee invoked the protected criterion of “state of health” to assert his rights. Given the broad definition, the protected criterion of “disability” might have been more appropriate in this case. This is more than legal hair-splitting: in the event of discrimination based on “disability,” a “closed system of justification” applies, and adverse unequal treatment can only be justified if a characteristic associated with it constitutes a determining and essential occupational requirement and serves a legitimate purpose. For a bus driver, the absence of alcohol addiction will likely constitute an essential and determining occupational requirement, so the outcome might not have been different.

Steven Renette, lawyer-partner
steven.renette@mploy.be