Brussels, 28/02/2014 (Agence Europe) - On Thursday 27 February, the European Court of Justice ruled in case C-588 that if a worker is unlawfully dismissed during part-time parental leave, the fixed-sum protective award to which a full-time worker is entitled must be calculated on the basis of full-time salary, adding: 'A calculation based on part-time salary makes nugatory much of the protective system established by EU law (EU Directive 96/34/EC)and affects the rights acquired by the worker.' The Arbeidshof te Antwerpen (Higher Labour Court, Antwerp, Belgium), before which an appeal was lodged by a full-time worker on a fixed contract, who was made redundant by her employer at the beginning of her part-time parental leave with a notice period of five months. The Belgian court ordered the employer to pay a fixed-sum protective award of six-months pay because there was no compelling or sufficient reason justifying unilateral termination of the employment contract during parental leave. The employer claims that the award must be calculated on the basis of the salary paid at the date of dismissal, namely the salary for the part-time parental leave. Belgian law states that in such cases, the fixed-sum award must be calculated on the most recent salary.
The Court of Justice rules that “the Belgian fixed-sum protective award is a measure capable of protecting workers against unlawful dismissal due to an application for, or the taking of, parental leave. However, it states that protective measure would lose a great part of its effectiveness if the award were to be determined not on the basis of the full-time salary but on the basis of the reduced salary earned during part-time parental leave. Such a calculation method would be likely not to have a deterrent effect sufficient to prevent the unlawful dismissal of workers and would render null the protective system put in place by EU law.”
The Court notes that under EU law, “rights acquired by the worker on the date on which parental leave starts (namely all the rights and benefits derived from the employment relationship) are to be maintained as they stand until the end of parental leave. The Court considers that the right to a fixed-sum protective award in the event of the unilateral termination of a contract without compelling or sufficient reason is an acquired right, insofar as the award is payable on the basis of the employment which the worker carried out and which he would have continued to carry out but for the unfair dismissal.” (FG)