On 30 January 2017, the Court of Cassation clarified the conditions under which an employee may waive his right to invoke the suspension of the notice period.

Under article 38, §2, subparagraph 2 of the Law of 3 July 1978 regarding employment contracts, certain legal causes – such as sickness or annual leave – suspend and extend the notice period.

Consequently, at the commencement of the notice period, the end date of the notice period as well as the financial impact for the employer, when the employment contract will definitely be terminated, are difficult to determine.

For example:

  • The employer terminates the employment contract of Mr X with a notice period of six months
  • During the notice period, Mr X takes two weeks of annual leave and, additionally, one week of sick leave.
  • Exactly six months after the commencement of the notice period, the employer definitely terminates the employment contract.
  • In this case, Mr X is entitled to a remaining termination compensation of three weeks’ salary corresponding to the periods of sickness and annual leave, which suspended and extended the notice period.

To avoid, at the definite end of the employment contract, a remaining termination compensation having still to be paid for the periods of suspension of the notice period, the parties often conclude a settlement agreement, wherein they expressly agree that the employee waives his right to invoke the suspension of the notice period.

On 30 January 2017, the Court of Cassation ruled on the validity of such clause and held that:

  1. Article 38, §2, subparagraph 2 of the Law of 3 July 1978 regarding employment contracts is a mandatory provision that provides for protection in favour of the employee, which he cannot waive as long as its purpose for existence subsists.
  2. Consequently, the employee can only waive his right to invoke the suspension of the notice period when the suspension has already occurred and only for the already expired period of this suspension.

The Court of Cassation hereby quashed a judgement of the Labour Court of Liege, which held that the employee could validly waive his right to invoke the suspension of the notice period immediately after notification of the notice and thus before the suspension took place.

In practice, the judgement of 30 January 2017 holds that:

  • Caution is required when providing in the settlement agreement for a clause stating that the employee waives his right to invoke the suspension of the notice period. Indeed, the employee can always challenge the validity of such clause later on, resulting in financial implications for the employer.
  • To prevent the employee from claiming a remaining termination compensation for the periods of suspension of the notice, the employee can be asked to (re)confirm in writing that he waives his right to invoke the suspension of the notice period at the definite termination of the employment contract.