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In three judgments delivered on 12 October 2026, the Court of Cassation addressed a question that regularly arises in dismissal disputes: may an employee who has been dismissed, claim several indemnities on account of one and the same dismissal? The Court examined three combinations: the indemnity for manifestly unreasonable dismissal together with damages for abuse of the right to dismiss, the same indemnity together with the lump-sum indemnity for discrimination, and the protection indemnity for employee representatives together with the lump-sum indemnity for discrimination. In each case, the answer was the same: where two indemnities compensate the same damage, they cannot be cumulated.
Manifestly unreasonable dismissal and abuse of the right to dismiss
An employee had repeatedly been subject to disciplinary sanctions on account of behavioural problems. After the employer indicated that the last disciplinary sanction was a final warning, the employer allowed the employee to continue working for another three months, during which no new incidents occurred. Nevertheless, the employer terminated the employment contract with notice, on the basis of the very facts for which disciplinary sanctions had already been imposed. The labour court of appeal awarded the employee both the indemnity for manifestly unreasonable dismissal and additional damages of EUR 5,000 for abuse of the right to dismiss.
The Court of Cassation clarified the relationship between the indemnity for manifestly unreasonable dismissal and damages for abuse of the right to dismiss. The lump-sum indemnity provided for in Article 9 of CBA No. 109 compensates the material and moral damage resulting from the manifestly unreasonable nature of the dismissal. In the case at hand, the findings regarding the abuse of right were based on the same facts and circumstances. Therefore, both indemnities covered the same moral damage and could not be cumulated. The Court accordingly set aside the judgment insofar as it had awarded additional damages of EUR 5,000 for abuse of the right to dismiss on top of the indemnity for manifestly unreasonable dismissal.
Source: Court of Cassation, 12 October 2026, S.20.0061.F
Manifestly unreasonable dismissal and discrimination based on state of health
In the second case, an employee had been dismissed because of his repeated absences. The labour court of appeal held that the employer had discriminated against the employee on the basis of his state of health. It awarded a lump-sum indemnity equal to six months’ remuneration under Article 18, §2, 2° of the Anti-Discrimination Act, as well as an indemnity for manifestly unreasonable dismissal under Article 9 of CBA No. 109, on the ground that a normal and reasonable employer would not have dismissed the employee in this way.
The Court of Cassation set aside that decision. The lump-sum indemnity for manifestly unreasonable dismissal covers the material and moral damage resulting from the manifestly unreasonable nature of the dismissal. The lump-sum indemnity for discrimination, in turn, compensates the damage resulting from the discrimination in the employment relationship. Where the manifestly unreasonable dismissal consists precisely in that prohibited discrimination, both indemnities cover the same damage. In this situation, Article 9, §3 of CBA No. 109 precludes their cumulation.
Source: Court of Cassation, 12 October 2026, S.23.0034.F
Protection of employee representatives and discrimination based on trade union conviction
The third case concerned an employee representative on the works council and the committee for prevention and protection at work who was dismissed without the special dismissal procedure laid down in the Act of 19 March 1991 having been followed. The labour court of appeal found that the dismissal was related to the employee’s capacity as an employee representative. Therefore, it regarded the dismissal both as a breach of the dismissal protection for employee representatives and as discrimination on the ground of trade union conviction. The employee was awarded the special protection indemnity provided for in Articles 16 and 17 of the Act of 19 March 1991 as well as an additional lump-sum discrimination indemnity of six months’ remuneration under the Anti-Discrimination Act.
The Court of Cassation set aside this decision as well. The special dismissal protection for employee representatives aims to protect employees against dismissal on account of their trade union mandate. According to the Court, this protection constitutes a specific application of the general prohibition of discrimination. Since the lump-sum protection indemnity covers the material and moral damage resulting from a dismissal in breach of the protection scheme, it covers the same damage as the lump-sum discrimination indemnity under the Anti-Discrimination Act where the discriminatory nature of the dismissal consists precisely in the breach of the trade union protection.
Therefore, the Court concluded that both indemnities cannot be cumulated. Awarding an additional discrimination indemnity on top of the protection indemnity violates the Anti-Discrimination Act.
Source: Court of Cassation, 12 October 2026, S.25.0025.F
The common thread: one damage, one indemnity
Although the three judgments concern different legal bases, the Court applied the same line of reasoning in each of them:
- first, it determined which damage each indemnity is intended to compensate: the indemnity for manifestly unreasonable dismissal and the protection indemnity both cover the material and moral damage resulting from the (unlawful) dismissal itself;
- next, it examined whether the second claim was based on the same facts and circumstances, or whether the unlawfulness relied upon consisted precisely of the same conduct (the discrimination or the breach of the trade union protection);
- if so, both indemnities cover the same damage and cannot be cumulated.
Therefore, the decisive criterion is not the number of legal bases invoked, but the damage that is compensated. A single dismissal that is unlawful on several grounds does not, for that reason alone, give rise to several indemnities.
How do these judgments relate to earlier case law?
These judgments run counter to a growing body of lower case law that accepted cumulation. Labour courts of appeal had allowed the indemnity for manifestly unreasonable dismissal to be cumulated with the lump-sum discrimination indemnity. In their view, Article 9, §3 of CBA No. 109 cannot stand in the way of the Anti-Discrimination Act, as a collective bargaining agreement cannot derogate from a higher-ranking statutory norm (Article 51 of the Act of 5 December 1968). They further considered that both indemnities have a different cause and compensate different damage: the discrimination indemnity is a civil sanction designed to ensure the effectiveness of the prohibition of discrimination, whereas the indemnity under CBA No. 109 sanctions the employer’s failure to justify the dismissal (Labour Court of Appeal of Mons, 23 September 2022; Labour Court of Appeal of Brussels, 28 March 2025). However, that approach was not unanimous. The Brussels labour court of appeal had earlier held that Article 9, §3 does not breach the hierarchy of norms, as it does not prevent the employee from claiming the discrimination indemnity, but merely from claiming an indemnity for manifestly unreasonable dismissal on top of it (see J.L.M.B., 2023/37, p. 1659). Case law was similarly divided on damages for abuse of the right to dismiss, with an increasing number of decisions allowing cumulation where the employee established a distinct fault and distinct damage.
The Court of Cassation does not expressly address the hierarchy-of-norms argument in its three judgments. However, the Court held that Article 9, §3 of CBA No. 109 precludes the cumulation of the indemnity for manifestly unreasonable dismissal with the discrimination indemnity where both cover the same damage. In doing so, the Court implicitly accepts that the anti-cumulation rule of CBA No. 109 also applies to the discrimination indemnity under the Anti-Discrimination Act, despite the hierarchy-of-norms argument relied on in the lower case law.
This does not mean that cumulation is excluded in all cases. Since the Court’s reasoning turns on the identity of the damage, it does not preclude cumulation where the additional claim is based on other facts or relates to damage distinct from that covered by the lump-sum indemnity. In that situation, the indemnities do not cover the same damage, and the Court’s reasoning on the prohibition of cumulation does not apply. This is in line with the Court’s judgment of 20 February 2012, in which it allowed the cumulation of a sectoral job security indemnity with the protection indemnity for employee representatives on the ground that both indemnities compensated distinct damage.
Source: Labour Court of Appeal of Mons, 23 September 2022, R.G. 2021/AM/102; Labour Court of Appeal of Brussels, 28 March 2025, R.G. 2024/AB/241; J.L.M.B., 2023/37, p. 1659, note R. Capart and C. Assaf; Court of Cassation, 20 February 2012, S.10.0048.F
What does this mean for employers?
The judgments offer two useful lessons.
Firstly, employers facing a claim in which several indemnities are sought for the same dismissal should examine whether those claims are based on the same facts and circumstances. Where the abuse of right, discrimination or the breach of the dismissal protection relied upon coincides with the very ground that makes the dismissal unlawful, the indemnities cover the same damage and the employee cannot claim them cumulatively. Conversely, an employee seeking additional compensation will have to show that the additional claim relates to other facts or to damage distinct from that already covered by the lump-sum indemnity.
Secondly, the Court’s reasoning on the special protection for employee representatives is noteworthy: by characterising that protection as a specific application of the general prohibition of discrimination, the Court rules out an additional discrimination indemnity where the discriminatory nature of the dismissal lies precisely in the breach of the trade union protection.
Do you have questions about these judgments, the indemnities due upon dismissal or the defence against cumulative claims? Please do not hesitate to contact our office. We would be pleased to advise you on the impact of this case law on your organisation.
