The shortened notice period for employees of 65 years and older is not discriminatory

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Date:
12 Oct 2010

<p>Article 83 § 1 of the Law on Employment Contracts enables the employer to end the employment contract of an employee who is 65 years or older with a shortened notice period, namely three or six months depending on the employee's seniority counting less or more than five years.</p>

Article 83 § 1 of the Law on Employment Contracts enables the employer to end the employment contract of an employee who is 65 years or older with a shortened notice period, namely three or six months depending on the employee's seniority counting less or more than five years.

The employment contract of an employee who approached the age of 65 was terminated on this basis with a notice period of six months. The dismissed employee claimed before the Labour Tribunal in Antwerp a supplementary indemnity in lieu of notice equal to 22 months salary. According to the employee, article 83 § 1 was in breach with articles 10 and 11 of the Constitution, with the prohibition on age discrimination as foreseen by the so-called European Framework Directive 2000/78 and with Belgian anti-discrimination laws. The Labour Tribunal referred the question to the Constitutional Court for a preliminary ruling.

The Court decided that the difference in treatment based on article 83 § 1 was justified. The Court ruled that the distinction is based on an objective criterion and is reasonably justified because it is based on whether the employee has reached the age of 65 and therefore is in principle entitled to a full retirement pension.

Further the Court said that this distinction has a legitimate aim of a social nature given the fact that the short notice periods are intended to facilitate employment after the retirement age. If the normal notice periods would be applied, the employer would sometimes have to decide years ahead whether the employee should be held in service when he reaches the pension age.

In addition, the Court points out that the employer is not obliged to apply the shortened notice periods and that he can therefore also apply a longer notice period.

Finally the Court is of the opinion that this distinction is not discriminatory under European discrimination law.

This judgment clarifies that the shortened notice periods for people of 65 and older are not conflicting with the articles 10 and 11 of the Constitution. It is up to the Court of Justice of the European Union to render a final judgment about the compatibility of the difference with the European prohibition on age discrimination.