No damages for the employee if the employer does not offer outplacement assistance

23 Mar 2016

If an employee is dismissed for serious cause, and this serious cause is later found to be unfair, the employee is not entitled to damages because the employer did not make an outplacement offer, nor does such a dismissal qualify automatically as a case of manifestly unfair dismissal.

In case of dismissal, the employer is in certain circumstances obliged to make an outplacement offer, in particular when the employee is entitled to a notice period of more than 30 weeks (general scheme) or when the employee is older than 45 years (special scheme). This obligation does not apply in case of a dismissal for serious cause.

In a case where the employee challenged the dismissal for serious cause, the labour tribunal of Brussels recently clarified that when the serious cause is not recognised, the employee is not entitled to damages from the employer for not making an outplacement offer (special scheme). However, in this case, an indemnity can be due by the employer to the National Employment Office.

In the same judgment, the labour tribunal rejected a claim to obtain damages for manifestly unreasonable dismissal. A dismissal is manifestly unreasonable when the dismissal is not related to the suitability or the behaviour of the employee or the needs of the company (CBA no. 109). The simple fact that the serious cause is not recognised does not mean that the dismissal was manifestly unreasonable.

> Action point
Check upon each dismissal if an outplacement offer should be made.