The Brussels Labor Court reiterates the conditions for the validity of an equivalent act of termination

Context  

An employee reported growing tensions with a colleague, which she described as psychological harassment. She submitted two formal requests for psychosocial intervention, one against her colleague and one against the management. 

The employer then terminated her employment contract, subject to notice. 

The employee contested her dismissal and claimed that the employer had committed an act equivalent to termination. She invoked breaches relating to "psychosocial well-being at work" and breaches relating to the notice period. On these grounds, she claimed compensation in lieu of notice. 

Decision of the Court  

First, the Court distinguishes between "an act equivalent to termination" and "tacit termination." Tacit termination implies that the breach reveals a clear intention to terminate the employment contract. On the other hand, an act equivalent to termination results from a significant unilateral change to an essential element, without it being necessary to prove the intention to terminate.  

In this case, the employee invoked an act equivalent to termination for events that occurred four months earlier. The Court ruled that an act equivalent to termination cannot be recognized retroactively. The Court further specified that, with regard to the breaches alleged against the employer, the employee did not demonstrate that these had led to a unilateral modification of the employment contract. 

The Court therefore ruled out the existence of an act equivalent to termination attributable to the employer. Consequently, the termination of the employment contract was attributable to the employee. The latter was ordered to pay compensation in lieu of notice. 

Takeaway 

The decision contains several important lessons concerning the invocation of an act equivalent to termination.  

Tacit termination differs from an act equivalent to termination in that it presupposes, unlike the latter, that the breach reveals a clear intention to terminate the employment contract. 

Furthermore, an act equivalent to termination cannot be retroactive. Finally, breaches attributed to the employer can only justify such an act if they result in the unilateral modification of an essential element of the employment contract. The burden of proof lies with the party invoking this argument. Failing this, the employee is considered to have terminated the employment contract without notice and irregularly. 

Source: Brussels Labor Court, June 6, 2025, R.G. No. 2024/AB/30, unpublished.