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Claeys formula not always applied for older employees
When an employee whose annual gross salary exceeds 30.327,00 EUR (i.e. a senior executive) is dismissed, the parties are to agree upon the notice period to be granted to the employee.
Should this not be the case, the duration of the notice period is determined by the labour courts and is based on the probability for the employee to find a similar and appropriate employment, considering his age, his years of service, the importance of his position and his salary.
The Claeys formula gives an indication of the average notice period usually granted by the courts in similar cases.
The Claeys formula is not legally binding but is often applied by the judges. The Labour Court of Liege had to rule on the case of a 53 and 5 months old employee with 4 years and 5 months of service who had been dismissed with a notice period of 4 months and who claimed an additional indemnity in lieu of notice of 3 months based on the application of the Claeys formula.
The Labour Court of Liège decided, in its judgment of 10 October 2008, that applying the Claeys formula in this case would result in a notice period which would be too long considering his relatively limited years of service.
The Labour Court of Liège considered that the age of the employee could not be a determining factor in establishing the notice period for employees with a limited length of service. According to the Labour Court, this would discourage potential future employers to recruit older employees. Based on these considerations, the Labour Court only granted the employee an additional indemnity equivalent to one month of salary.
Sofie Bontinck, Advocaat/Avocat, Tel.: + 32 3 242 42 24, sobontinck@laga.be
Tom Robert, Advocaat/Avocat, Tel.: + 32 3 242 42 31, trobert@laga.be
Kitty Vinck, Advocaat/Avocat, Tel.: + 32 3 242 42 39, kvinck@laga.be
