Employees who ran as candidates during the social elections are protected against dismissal, as provided by the act of 19 March 1991 (establishing special dismissal procedures for employee representatives to the works councils and to the committees for safety, health and embellishment of the workplace, and for candidate employee representatives. This act provides that the system of protection against dismissal is no longer granted to employee representatives reaching the age of 65, unless it's a constant practice within the company to keep in service the category of workers they belong to.

Furthermore, the mere fact of reaching the legal retirement age does not lead to the termination of the employment contract.

Employers or employees wanting to terminate an employment contract of an employee reaching the legal retirement age shall either notify a notice period or pay an indemnity in lieu of notice. However, the legislator provides the possibility of a reduced notice period. As a matter of fact, article 37/6 of the act of 3 July 1978 on employment contracts allows the dismissal of a worker, using a reduced notice period if "the notice is given in order to terminate the employment contract concluded for an indefinite period of time as of the first day of the month following the month in which the employee reaches the legal retirement age".

In case of dismissal with immediate effect upon payment of an indemnity in lieu of notice, the notification of the dismissal can only take place through the application of a notice period as of the first day of the month following the month in which the employee reached the legal retirement age.

In case of dismissal through the execution of a notice period, a shortened notice period can only be used provided that the notice period expires at the earliest on the last day of the month in which the employee reaches the legal retirement age.

The Ghent Labour Court had to rule on a dismissal through the execution of a notice period for an employee protected by the act of 19 March 1991 who reached the legal retirement age on 15 June 2013 (Ghent Labour Court, 9 September 2016, RG 2015/AG/46, available here). A letter regarding the dismissal through the execution of a notice period was sent to him by registered mail on 17 December 2012, the reduced notice period of 6 months started on 1 January 2013 and ended on 30 June 2013, e.g. at the end of the month in which he reached the age of 65.

Although the notice period was duly notified in order to terminate the employment contract as of the 1st day of the month after the month in which the employee reached the legal retirement age, the employee concerned had not reached the legal retirement age yet at the time he was notified of the dismissal through the execution of a notice period (on 17 December 2012).

As such, the Ghent Labour Court had to rule on the legal character of this dismissal with respect to the Act of 19 March 1991 with, in the end, the application (when appropriate) of protection indemnities provided by the act of 19 March 1991.

For the Ghent Labour Court, although in the case at hand the conditions were met in order to apply the reduced notice period provided in article 37/6 of the act of 3 July 1978 on employment contracts, the ones required in order to no longer benefit from the protection regime (based on age) provided by the act of 19 March 1991 had not (yet) been met.

For the Ghent Labour Court, a dismissal that is notified before the worker reaches the legal retirement age of 65, even if the notice period only starts after the employee has reached the age of 65 is unlawful in the sense of the act of 19 March 1991.