From 3 January 2005, Ms Rogiers worked in Belgium as a full-time employee of Lyreco under an employment contract of indefinite duration.

Ms Rogiers was on maternity leave from 9 January 2009 to 26 April 2009 after which date Ms Rogiers should have resumed work on a half-time basis under parental leave which she had been granted for a period of four months. However, by registered letter dated 27 April 2009, Lyreco terminated Ms Rogiers’ employment contract with a notice period of five months taking effect on 1 May 2009.

Ms Rogiers brought an action against her dismissal before the Labour Court (Antwerp) disputing the grounds of dismissal provided by Lyreco, namely: (a) that it was impossible to employ Ms Rogiers, given the lack of work and (b) her refusal to accept the other position offered her when the position of Recruitment Manager, which she had occupied before taking parental leave, was done away with.

By judgment of 21 September 2011, the Labour Court ordered Lyreco to pay a fixedsum protective award equal to six months’ salary because of the unilateral termination of Ms Rogiers’ employment contract, without compelling or sufficient reason, during her parental leave. According to that judgment, the amount of that award had to be calculated on the basis of the salary paid to Ms Rogiers at the date of her dismissal, i.e. 27 April 2009; that is to say, the salary corresponding to the half-time hours she worked on account of the part-time parental leave to which she was entitled.

On 14 December 2011, Lyreco lodged an appeal against that judgment before the Higher Labour Court (Antwerp). Ms Rogiers brought a cross-appeal before that same court seeking to have the amount of the fixed-sum protective award that Lyreco had been ordered to pay her calculated on the basis of the salary for full-time working hours.

By judgment of 10 December 2012, the Higher Labour Court confirmed that Ms Rogiers had been dismissed without compelling or sufficient reason during her parental leave and that, as a result, she was entitled to payment of a fixed -sum protective award equal to six months’ salary. As to the level of salary that should apply, the Higher Labour Court referred a number of questions to the CJEU for a preliminary ruling.

In essence, the referring court asks whether on a proper construction of clause 2.4 of the Framework Agreement, it is contrary to that provision for the fixed -sum protective award payable to a worker on part-time parental leave, when the employer unilaterally terminates, without compelling or sufficient reason, that worker’s full-time contract of indefinite duration, to be determined on the basis of the reduced salary earned by that worker at the date of his dismissal.

The CJEU takes the view that such a method of determining the amount of the fixedsum protective award would be likely to dissuade some workers from taking parental leave and, thus, would be liable to thwart the aim of the Framework Agreement.

The CJEU held that:

On a proper construction of clause 2.4 of the Framework Agreement on Parental Leave, which is set out in the annex to Council Directive 96/34/EC of 3 June 1996, read in the light both of the objectives of that Framework Agreement and of clause 2.6 thereof, it is contrary to that provision for the fixed-sum protective award payable to a worker on part-time parental leave, where the employer unilaterally and without compelling or sufficient reason terminates that worker’s full-time contract of indefinite duration, to be determined on the basis of the reduced salary earned by that worker at the date of the dismissal.

Practical lessons from this decision

If an employer dismisses an employee who is on parental leave, the employer may have to pay the employee a fixed-sum protective award based on that employee’s salary prior to the commencement of the parental leave and not at a lower level of salary paid during the parental leave.