Accumulating so-called "protection compensation" and the benefits provided by a company social plan

According to the Supreme Court, an unlawfully dismissed workers' representative is entitled, in addition to the special compensation linked to his/her protected status, to the benefits provided in a social plan concluded in the company.

In February 2012 the Supreme Court had considered, facing a hesitating case-law, that the so-called "protection compensation" due to an unlawfully dismissed workers' representative may be cumulated with the job security compensation provided in a collective agreement concluded in the insurance sector (see our newsflash of 27 March 2012).

On 3 December 2012, The Supreme Court has ruled in the same way about the extra-legal benefits provided in the social plan of a company where there was a collective dismissal. This does not relate to benefits provided in an industry sector collective agreement, but benefits resulting from a collective agreement at company level.

The Court once again confirms that the special protection compensation replaces the normal compensation arising from the ending of an employment contract.

Nevertheless, according to the Court, nothing forbids the workers' representative whose dismissal was unlawful from claiming the other benefits provided by the company collective agreement. In this case the Court dealt with the payment of a complementary unemployment benefit, provisions regarding the occupational plan in force within the company, and reclassification measures. The Court stated that these benefits have another purpose than the compensation resulting from the irregular dismissal.

> Action point

The dismissal of a workers' representative in case of a collective dismissal is always a delicate operation. Attention should also be paid to this when drafting the social plan.