The indemnity in lieu of notice for employees working reduced hours in a "time credit regime": still to be calculated on the part-time salary

The Constitutional Court has confirmed that the indemnity in lieu of notice of employees who work reduced hours in a so-called "time credit regime" must be calculated on the basis of the real (and therefore, part-time) salary.

There is no doubt that the notice period for an employee who is dismissed in a period in which he/she has reduced his/her working hours in a time credit regime, must be determined based on a hypothetical full-time salary. On the other hand, the calculation of the indemnity in lieu of notice in such a situation has been the subject of discussion for a long time.

Most Belgian courts take the position that the indemnity in lieu of notice must be calculated on the basis of the real (and therefore, part-time) salary. Following the Meerts case ruling of the European Court of Justice of 22 October 2009, the indemnity in lieu of notice of employees enjoying part-time parental leave, is calculated on the hypothetical full-time salary. This has been expressly confirmed in Belgian legislation but without being extended to other forms of leave.

Following the Meerts case, different labour tribunals and courts have asked the Constitutional Court whether the difference in treatment between employees enjoying part-time parental leave and employees enjoying part-time time credit constitutes discrimination.

In its ruling of 10 November 2011, the Constitutional Court confirmed that the difference in treatment does not constitute a violation of the equality and non-discrimination principle. The Court believes that the law provides adequate protection in the event of a dismissal of employees benefitting from a regime of part-time time credit (calculation of the notice period on the basis of the hypothetical full-time salary and the compensation for protected status). According to the court, the Meerts case and the legal arrangement for parental leave in accordance therewith have to be considered in the specific European legal context and cannot be extended to other forms of part-time work.