Cumulation of compensation in the event of dismissal: the Court of Cassation (partially) clarifies the rules

1. Protection of employee representatives and discrimination

Facts and procedural background

An employee representative was dismissed as part of a restructuring, without compliance with the special dismissal procedure provided for by the Act of 19 March 1991.

Before the Mons Labour Court of Appeal, she was awarded the special protection indemnity as well as compensation for discriminatory dismissal based on her trade union beliefs. The Court held that both payments could be combined because the two protection regimes pursued distinct objectives: ensuring the effectiveness of the prohibition of discrimination and sanctioning an unlawful dismissal. The Court also considered that the payments compensated different losses.

Decision of the Court of Cassation

The Court of Cassation overturned the judgment.

The special protection provided for by the Act of 19 March 1991 constitutes a specific form of protection against discrimination based on trade union beliefs, as governed by the Act of 10 May 2007. The special protection indemnity provides lump-sum compensation for all damage resulting from a dismissal carried out in breach of that protection.

Since both indemnities compensate the same damage, they cannot be awarded cumulatively.

2. CBA No. 109 and discrimination

Facts and procedural background

Following his dismissal, an employee claimed and was awarded both compensation for discrimination and compensation for manifestly unreasonable dismissal under Collective Bargaining Agreement (CBA) No. 109.

The Brussels Labour Court of Appeal held that the dismissal was discriminatory because it was based on the employee’s state of health. The Court concluded that the dismissal was therefore manifestly unreasonable.

Decision of the Court of Cassation

The Court of Cassation overturned the judgment.

Compensation for discrimination covers the material and non-material damage resulting from discrimination in employment relationships. Where the manifestly unreasonable nature of a dismissal stems precisely from the discrimination, both indemnities compensate the same damage. In such circumstances, the employer cannot be ordered to pay additional compensation under CBA No. 109.

3. CBA No. 109 and abuse of the right to dismiss

Facts and procedural background

An employee committed acts for which his employer imposed disciplinary sanctions. Three months later, he was dismissed on the basis of the same acts. The Liège Labour Court of Appeal ordered the employer to pay compensation for manifestly unreasonable dismissal and damages for abuse of the right to dismiss. In this case, the unusual sequence of disciplinary sanctions followed by dismissal formed the common basis for both awards.

Decision of the Court of Cassation

The Court of Cassation overturned the judgment.

Where manifestly unreasonable dismissal and abuse of the right to dismiss are based on the same facts and the same assessment, the compensation payments cover the same damage and cannot be awarded cumulatively.

Key takeaways

Through these three landmark judgments, the Court of Cassation appears to follow a guiding principle: lump-sum compensation payments arising from termination of employment cannot be combined where they compensate the same damage, even if they are based on different legal grounds.

As regards the special protection afforded to employee representatives, the statutory lump-sum compensation already covers, by its very nature, the damage arising from discriminatory dismissal on a protected ground. This rules out cumulative compensation.

Where the discriminatory nature of a dismissal is the basis for finding it manifestly unreasonable, only compensation for discrimination may be payable.

Finally, as regards compensation under CBA No. 109 and damages for abuse of the right to dismiss, both payments cannot be combined where they are based on the same facts and the same assessment of the circumstances.

Sources: Belgian Court of Cassation, 12 October 2026, S.25.0025.F; 12 October 2026, S.23.0034.F; 12 October 2026, S.20.0061.F.