Indemnity in lieu of notice in case of time-credit: still to be calculated on the basis of the part-time remuneration

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Date:
10 May 2010

<p>Until recently, it was generally accepted that the notice <em>period</em> for an employee who is dismissed during a period in which he reduced his working time in the framework of time-credit must be calculated on the basis of the hypothetical fulltime remuneration, while the corresponding <em>indemnity </em>in lieu of notice must be calculated on the basis of the real half-time remuneration.</p>

Until recently, it was generally accepted that the notice period for an employee who is dismissed during a period in which he reduced his working time in the framework of time-credit must be calculated on the basis of the hypothetical fulltime remuneration, while the corresponding indemnity in lieu of notice must be calculated on the basis of the real half-time remuneration.

This was the standing interpretation of the law by the Belgian labour courts.

These principles have somewhat been shaken by the European Court of Justice with its decision of 22 October 2009 (Meerts-decision) in which it judged that – in case of part-time parental leave – the indemnity in lieu of notice must also be calculated on the basis of the hypothetical fulltime remuneration. This principle is in the meantime embedded in the Belgian legislation. 

In pursuance of the Meerts-decision, some think that also in case of a working time reduction in the framework of time-credit, from now one not only for the calculation of the notice period but also for the indemnity in lieu of notice, the hypothetical fulltime remuneration should be taken into account. If not, an unjustified distinction should be made between employees who reduce their working time in the framework of parental leave against employees who do the same thing in the framework of time-credit. The Minister of Work has asked the National Labour Council’s advice on that subject.

A first decision of the Labour tribunal of Brussels of 29 April 2010 brushed aside this point of view and formally states that the new principle concerning parental leave can not be continued on the time credit system. In other words: for employees who benefit from time-credit, the indemnity in lieu of notice must still be calculated on the basis of the real (and therefore part-time) remuneration. The discussion certainly will be continued!