- 04 Mar 2014
The European Court of Justice has ruled that, when a full-time employee is dismissed illegally while enjoying part-time parental leave, the protection indemnity should be calculated based on the individual's full-time salary.
A female employee was dismissed without a serious or adequate cause during her part-time parental leave and was thus entitled to a lump sum protection indemnity equal to six months' salary. How should this indemnity be calculated: based on her full-time or part-time salary? This question was addressed to the European Court of Justice.
The Court ruled that when an employee is dismissed without adequate cause while on part-time parental leave, the lump sum protection indemnity should be calculated based on the salary the employee would have earned if he/she hadn't reduced his/her working hours.
The Court based this decision on the European framework agreement which foresees that, in order to enable employees to exercise the right to parental leave, the Member States must take the necessary measures to protect the employees against dismissal. The existing Belgian regulation concerning lump sum protection indemnities would, according to the Court, lose its useful effect if the indemnity would be calculated based on the reduced salary.
The Court's position is in line with its position concerning the calculation basis for the indemnity in lieu of notice in the case of an employee on parental leave as set out in the Meerts-case (see our newsflash).
> Action point
Take into account the fact that if a lump sum protection indemnity is due to an employee enjoying part-time parental leave, it will need to be calculated on the salary the employee would have earned, if he/she hadn't reduced his/her working hours.