Shorter notice period for retirement age employees: discrimination?

Article 83, § 1 of the Act on employment contracts determines that when an employee reaches the age of 65 (the legal retirement age), the employer can dismiss this person with a six-month notice period (in case the seniority of the employee exceeds 5 years). Six months is certainly a much shorter notice period than what a senior employee can normally expect, especially when that employee has given the same employer many years of loyal service.

Nevertheless, the Belgian Constitutional Court (1) has found that this difference in treatment faced by "older" employees does not constitute discrimination within the definitions of articles 10 and 11 of the Constitution. Article 83, § 1 of the Act on employment contracts must, in fact, be read in conjunction with article 36 of that same law.

Article 36 mandates that a clause which automatically ends the employment contract when the employee reaches retirement age is invalid. The contract must thus be terminated in the usual manner, i.e. with a notice period when retirement age is reached. This article protects the employee, since reaching retirement age does not automatically terminate his employment contract without notice.

However, one must also consider the interests of the employer, who cannot be expected to give a notice, several years in advance, if he wants to terminate the contract by the time the employee reaches the age of 65. In such circumstances, a shorter notice period may well be justified.

This conclusion is in line with Belgian and European regulations concerning discrimination. These prescribe that a difference in treatment on the grounds of age does not constitute discrimination, when under national law, it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.