From stacking to scaling back: limits on cumulative dismissal compensation

Anyone who has dealt with a dismissal case before a labour court in recent years will recognise the list. Compensation in lieu of notice, compensation for manifestly unreasonable dismissal, a fixed discrimination award equivalent to six months' salary, additional damages for abuse of the right to dismiss and, where the employee enjoys special protection, a protection indemnity.

One dismissal does not necessarily mean just one compensation payment.

Three recent rulings by the Court of Cassation set limits on the accumulation of dismissal compensation. In three judgments delivered on 12 October 2026, the Court clarified that the legal basis of a claim is not the only factor that matters. The loss covered, the underlying facts and the statutory rules on combining compensation must also be considered.

The key question: what loss does the compensation cover?

In all three judgments, the Court looks beyond the label attached to a compensation payment and examines the loss it is intended to cover. Where two payments serve the same purpose, the employee has already been compensated through one of them. The same dismissal and the same facts give rise to one loss, even where a claim is based on two different laws.

1. Employee representative and trade union discrimination: no double compensation

A protected employee representative is dismissed without the procedure laid down in the Act of 19 March 1991 being followed. In addition to the special protection indemnity, the Labour Court of Appeal awards compensation equivalent to six months' salary for discrimination based on trade union beliefs.

An employer facing financial difficulties dismissed 26 employees. One of them was a female employee who enjoyed special protection as an employee representative on the works council and the Committee for Prevention and Protection at Work (CPPT).

The procedure under the Act of 19 March 1991 had not been followed because the joint committee had not given prior recognition of the economic grounds for dismissal. The employee requested reinstatement, which was refused. She subsequently received a protection indemnity equivalent to four years' salary, plus salary covering the remaining period of her mandate.

The Mons Labour Court of Appeal (28 June 2024) also found that the dismissal was based on her trade union beliefs, a protected characteristic under the Anti-Discrimination Act of 10 May 2007. It therefore awarded her an additional fixed discrimination payment equivalent to six months' salary under Article 18, § 2, 2° of that Act.

The Court of Cassation rejected this combination, setting out its reasoning in four steps:

• Purpose of the protection. Special dismissal protection aims to prevent employees from being dismissed because of their mandate or candidacy, which would constitute a form of discriminatory treatment. It seeks to safeguard these employees' freedom and ensure the proper functioning of social dialogue.
• What the protection indemnity covers. The indemnity provided for in Articles 16 and 17 replaces ordinary dismissal compensation, unless the latter is higher. It provides fixed compensation for the financial and non-material loss resulting from dismissal in breach of the protection rules, including the loss caused by the dismissal itself.
• The link with the Anti-Discrimination Act. Based on the legislative preparatory works relating to Article 4, 4° of the Anti-Discrimination Act and Article 108 of the Act of 30 December 2009, which introduced "trade union beliefs" as a protected characteristic, the Court concluded that the protection under the 1991 Act constitutes a specific form of protection against discrimination based on trade union beliefs.
• Conclusion. The protection indemnity generally covers the same loss as the discrimination award, namely the loss resulting from discriminatory dismissal based on trade union beliefs. As a rule, the two payments cannot be combined.

Court of Cassation, 12 October 2026, S.25.0025.F

2. Discrimination and manifestly unreasonable dismissal: one compensation payment

An employee was dismissed following repeated absences. According to the Brussels Labour Court of Appeal (3 October 2022), the dismissal was motivated by his current and future state of health and was therefore discriminatory.

The Labour Court of Appeal also considered the dismissal manifestly unreasonable, as a normal and reasonable employer would not dismiss an employee on discriminatory grounds. The result was a discrimination award, plus compensation for manifestly unreasonable dismissal (MUD).

The Court of Cassation rejected this combination, relying on the prohibition of cumulative compensation under Article 9, § 3 of Collective Bargaining Agreement (CBA) No. 109.

This CBA provides that compensation for manifestly unreasonable dismissal cannot be combined with any other compensation payable by the employer in connection with the termination of employment.

There are four exceptions: compensation in lieu of notice, non-compete compensation, compensation for loss of clientele and supplementary compensation paid on top of social security benefits.

The Court of Cassation's reasoning was as follows:

• What compensation for MUD covers. Article 8 of CBA No. 109 defines manifestly unreasonable dismissal as dismissal based on reasons unrelated to the employee's suitability or conduct or to the operational needs of the business, and which a normal and reasonable employer would never have decided upon. The compensation provided for in Article 9 (between 3 and 17 weeks' salary) covers the financial and non-material loss resulting from the manifestly unreasonable nature of the dismissal. This loss is distinct from the loss caused by the dismissal itself, which is covered by compensation in lieu of notice.
• The prohibition of cumulative compensation under CBA No. 109. Article 9, § 3 excludes the combination of compensation for MUD with any other payment owed by the employer in connection with the termination of employment. Four exceptions apply: compensation in lieu of notice, non-compete compensation, compensation for loss of clientele and supplementary compensation paid on top of social security benefits.
• Protection indemnities also fall within this prohibition. The Court added a general observation extending beyond the case itself: indemnities intended to protect employees against dismissal for specific prohibited reasons are generally considered payments arising from the termination of employment. They therefore cannot be combined with compensation for MUD.
• What the discrimination award covers. Article 14 of the Anti-Discrimination Act prohibits discrimination in employment relationships, meaning any unjustifiable distinction based on a protected characteristic (Article 4, 4°, 7° and 9°). The fixed award provided for in Article 18, § 2, 2° (generally six months' gross salary) compensates for the financial and non-material loss resulting from discrimination in employment.
• Conclusion. Where a dismissal is manifestly unreasonable because it is discriminatory and gives rise to the fixed award under Article 18, § 2, 2°, that award constitutes compensation payable by the employer "in connection with the termination of employment". Compensation for MUD cannot therefore be added.

The Labour Court of Appeal had based its finding of manifest unreasonableness precisely on the discriminatory nature of the dismissal. By awarding compensation for MUD on top of the six-month discrimination award, it breached Article 9, § 3 of CBA No. 109. The Court of Cassation therefore overturned the order to pay compensation for MUD.

Notably, unlike in the first judgment, the Court did not derive the prohibition of cumulative compensation from the legislative history, but directly from the wording of CBA No. 109.

This resolves a disagreement that had divided the lower courts: the majority had already rejected such combinations, while a minority had allowed them.

Court of Cassation, 12 October 2026, S.23.0034.F

3. Manifestly unreasonable dismissal and abuse of the right to dismiss: same facts, no cumulative compensation

An employee initially received a disciplinary sanction: a one-day suspension, accompanied by an explicit warning that this was his final warning before dismissal for serious cause.

Shortly afterwards, the employer discovered that the previous misconduct had occurred more frequently than initially believed and imposed two further suspensions of five days each. The employee subsequently apologised, promised to improve and challenged the proportionality of the sanction.

During the following three months, the employer identified no further misconduct. Nevertheless, the employee was dismissed with notice on the basis of the same facts for which he had already been warned and sanctioned.

The Liège Labour Court of Appeal (5 September 2019) awarded compensation for MUD equivalent to 15 weeks' salary. Its decision was not based on the reasons for dismissal as such, but on the way the termination unfolded.

The employer had initially chosen to continue the employment relationship and created an expectation of continued employment. The dismissal then followed without any new incident and without a convincing explanation for the delay.

In addition, the employer was ordered to pay EUR 5,000 in damages, assessed on an equitable basis, for abuse of the right to dismiss, under Article 16 of the Employment Contracts Act and the principle of good faith in the performance of contracts (Article 1134 of the former Civil Code).

According to the Labour Court of Appeal, the employer had severely sanctioned the employee twice and subsequently dismissed him for the same facts, after continuing to benefit from his work for another three months. The employer had also failed to give the employee another opportunity to be heard before the dismissal.

The Court of Cassation upheld the compensation for MUD but rejected its combination with damages for abuse of the right to dismiss. Its reasoning was as follows:

• What damages for abuse of the right to dismiss cover. An employer who abuses the right to dismiss must compensate the loss resulting from that abuse. This loss is distinct from the financial and non-material loss caused by the dismissal itself, which is covered by compensation in lieu of notice.
• What compensation for MUD covers. The compensation provided for in Article 9 of CBA No. 109 (between 3 and 17 weeks' salary) covers the financial and non-material loss resulting from the manifestly unreasonable nature of the dismissal. This loss is also distinct from the loss caused by the dismissal itself.
• The prohibition of cumulative compensation under CBA No. 109. Article 9, § 3 prohibits combining compensation for MUD with any other compensation payable by the employer in connection with the termination of employment, except for compensation in lieu of notice, non-compete compensation, compensation for loss of clientele and supplementary compensation paid on top of social security benefits.
• Conclusion. Where a dismissal is both manifestly unreasonable and constitutes an abuse of the right to dismiss "on the basis of the same facts and assessments", both payments compensate the same loss and cannot be combined.

The Labour Court of Appeal had partly justified the EUR 5,000 award by referring to the absence of a further hearing before dismissal. According to the Court of Cassation, this did not establish an additional, separate fault capable of justifying damages for abuse of the right to dismiss.

Interestingly, although the Court referred to Article 9, § 3 of CBA No. 109, its conclusion ultimately rested on the finding that both payments covered the same loss.

This also clarifies the limits of the prohibition: a genuinely separate fault committed in the way the dismissal is carried out, causing distinct harm, may still give rise to additional damages. Examples include a humiliating dismissal in front of colleagues or defamatory accusations.

The fact that the compensation for MUD was upheld is also noteworthy, given that the misconduct had been established and was related to the employee's behaviour.

The reasoning itself offers an important lesson. The Labour Court of Appeal found that the sequence of decisions taken by the employer revealed such a disproportion between the facts and the dismissal that those facts could not have been the actual cause of the dismissal.

According to the Court of Cassation, the Labour Court of Appeal correctly applied Article 8 of CBA No. 109 by considering not only the alleged misconduct but also the chronology of events.

An employer who first imposes a sanction, then continues the employment relationship and creates an expectation of continued employment, only to dismiss the employee several months later without any new incident, therefore faces a genuine risk of a finding of manifestly unreasonable dismissal, even where the misconduct itself is established.

Court of Cassation, 12 October 2026, S.20.0061.F

4. A practical assessment framework

The Court of Cassation has further clarified the criteria to be examined:

• What loss does each compensation scheme cover: the termination itself, its unlawful nature or a separate fault?
• Are the claims based on the same facts and the same assessment, or do they concern distinct losses?
• What does the applicable law or CBA expressly provide regarding cumulative compensation?

5. What does this mean for other compensation payments?

The judgments concern three specific combinations, but their reasoning has wider implications. The table below provides an overview. Assessments that do not follow directly from a judgment or statutory provision are our interpretation and are identified accordingly.

The table concerns whether cumulative compensation is permitted in principle. Each individual claim must first be substantiated.

6. What are the practical implications for employers?

These judgments do not reduce the risk of discrimination. They do, however, limit the financial accumulation of compensation payments. In a dispute or negotiation, employers should consider the following:

• Examine the factual basis of each claim. Where discrimination, manifestly unreasonable dismissal and abuse of the right to dismiss are based on the same facts, only one compensation payment should be awarded. The total amount claimed in legal proceedings may therefore be considerably higher than the amount ultimately recoverable.
• Pay attention to how the dismissal is carried out. A separate fault, such as public humiliation or unfounded accusations, may still give rise to additional damages.
• Make timely decisions following disciplinary action. An employer who continues the employment relationship after imposing a sanction and then dismisses the employee months later for the same facts, without any new incident, risks being ordered to pay compensation for MUD. It is therefore advisable to take any dismissal decision promptly or to document new facts carefully.
• Check the cumulative compensation rules under the applicable law or CBA. Where cumulative compensation is expressly permitted, the fact that claims arise from the same circumstances is not sufficient to prevent it.

Conclusion

Dismissal compensation is not a set of building blocks that can be stacked indefinitely. That is the central message of these three judgments.

One dismissal and one loss generally give rise to one compensation payment, even where the same facts fall under three different legal frameworks.

The possibility of a second payment has not disappeared entirely. Where the law expressly allows cumulative compensation, or where the employer commits a separate fault, additional compensation may still be awarded.

Moore Law's HR Legal team is happy to help you assess the compensation applicable to your case and determine which payments can legally be combined.