Court of Cassation upholds strict interpretation of termination at retirement age

Context 

An employment contract does not automatically end when the employee reaches the statutory retirement age. The standard termination rules remain in effect. This means that the proper notice period must be observed or that severance pay is due. Furthermore, reaching retirement age may not in itself be used as grounds for termination, as this may constitute prohibited age discrimination. 

However, Article 37/6 of the Employment Contracts Act provides for a specific provision when the employer terminates the employment contract with a view to retirement. In such cases, the notice period may end no earlier than the first day of the month following the month in which the employee reaches the statutory retirement age. In that case, the alternative notice period is a maximum of 26 weeks, even if the normal notice period would exceed 26 weeks. 

Decision of the Brussels Labor Court 

In a ruling dated March 12, 2024, the Brussels Labor Court notably held that the 26-week period is not a maximum but a minimum period. According to the Labor Court, the employer could therefore serve a shortened notice period exceeding 26 weeks, provided that it ended no earlier than the date on which the employee reaches the statutory retirement age. 

In this case, the employer had given a notice period of thirteen months, which was already shorter than the statutory notice period that should normally have been observed. That period ended after the employee reached retirement age. The Labor Court deemed this practice legally valid. 

Ruling of the Court of Cassation 

The Court of Cassation rejects the interpretation of the Labor Court in its judgment of January 12, 2026.  

The Court holds that Article 37/6 of the Employment Contracts Act is a derogatory provision that must be interpreted restrictively. The notice period specified therein may not begin more than 26 weeks before the date on which the employee reaches the statutory retirement age. 

It follows that the 26-week period is a maximum period and not a minimum period. The employer may invoke this derogatory provision only if the notice period begins within the 26-week period prior to reaching the statutory retirement age. If the notice is served earlier and the period thus begins more than 26 weeks in advance, Article 37/6 does not apply and the standard statutory notice periods apply. 

The Court therefore overturns the decision of the Brussels Labor Court. 

Takeaway 

This judgment clarifies that Article 37/6 of the Employment Contracts Act must be strictly applied. It is not sufficient for the notice period to end on or after the retirement age. The starting point of the notice period is also important. The period may not begin earlier than 26 weeks before reaching the statutory retirement age. 

Source: Court of Cassation, January 12, 2026, S.24.0062.N/2, juportal.be.