Did the Supreme Court put an end to the cumulation of dismissal indemnities?
In three judgments of 12 October 2026, delivered the same day, the Supreme Court (“Hof van Cassatie – Cour de Cassation”) put a brake on the cumulation of dismissal indemnities that are based on the same underlying facts and repair the same damage.
This is good news for employers, but the ruling has its limits: the Court does not rule out combining indemnities altogether, only where they compensate for the same damage.
In this newsflash we discuss the three rulings and their impact for employers.
What did the Supreme Court decide?
In each of the three cases, the labour court had awarded two dismissal indemnities in addition to ordinary severance pay. The Supreme Court focused on the damage each indemnity compensated, rather than the legal basis on which it was claimed, and held that the two indemnities could not be combined.
| Claims combined | Outcome | What the employer had to pay |
| Case n°1 An indemnity for manifestly unreasonable dismissal (CBA 109) and an indemnity for abuse of the right to dismiss, both based on the same facts | No cumulation | The CBA 109 indemnity (3 to 17 weeks’ pay). The EUR 5,000 abuse award is overturned. |
| Case n° 2 An indemnity for manifestly unreasonable dismissal (CBA 109), derived from a discriminatory dismissal, and a discrimination indemnity | No cumulation | The discrimination indemnity (as a rule six months’ pay). The CBA 109 indemnity is overturned. |
| Case n° 3 A special protection indemnity for employee representatives (Act of 19 March 1991) and a discrimination indemnity for trade union conviction | As a rule, no cumulation | The special protection indemnity. The discrimination indemnity is overturned. |
Case n° 1: Cumulation of an indemnity for manifestly unreasonable dismissal (CBA 109) and abuse of the right to dismiss?
An employee was disciplined and given a final warning. He apologised and, for three months, no new failings were reported. He was then dismissed based on the very same facts. The labour court of appeal accepted that the reasons were linked to the employee’s conduct, but held the dismissal to be manifestly unreasonable because of the sequence of the employer’s decisions (dismissal after the facts had already given rise to a disciplinary sanction, without any new elements having occurred in the meantime). The Supreme Court confirmed that the chronology of events can be taken into account for the CBA 109 assessment, not only the reasons given.
On top of this indemnity for manifestly unreasonable dismissal, the labour court of appeal also awarded a compensation of EUR 5,000 for abuse of the right to dismiss.
The Supreme Court rejected this cumulation.
It ruled that where a dismissal is manifestly unreasonable and constitutes an abuse of rights based on the same facts, without any additional or separate fault, the two indemnities repair the same damage and can therefore not be combined.
Case n° 2: Cumulation of an indemnity for manifestly unreasonable dismissal and an indemnity for a discriminatory dismissal?
An employee was dismissed after repeated sick leave. The labour court of appeal found that the dismissal was motivated by the employee’s state of health and awarded the six-months discrimination indemnity. Reasoning that a discriminatory dismissal is by definition unreasonable, it added a CBA 109 indemnity.
The Supreme Court rejected the cumulation of both indemnities.
It referred to article 9, §3 of the CBA n° 109 which provides that an indemnity for manifestly unreasonable dismissal cannot be combined with any other compensation due by the employer following the termination of the employment contract, with the exception of some exhaustively listed indemnities (which were irrelevant in the case at hand).
The Supreme Court ruled that the dismissal was held to be unreasonable precisely because it was discriminatory, in which case both indemnities cover the same damage and cannot be combined based on article 9, §3 of the CBA n° 109.
Case n° 3: Cumulation of a protection indemnity for an employee representative and a discrimination indemnity based on trade union conviction?
An employer dismissed an employee representative, member of the works council and the Committee for Prevention and Protection at Work, without following the burdensome statutory procedure of the Act of 19 March 1991. The labour court of appeal is of the opinion that the dismissal was motivated by the employee’s role as an employee representative and awarded a discrimination indemnity of six months’ salary on the ground of trade union conviction, on top of the special protection indemnity based on the 1991 Act (four years of salary plus the salary until the end of the mandate).
The Supreme Court annulled this decision. It stated that the regime of the 1991 Act is a particular form of protection against trade union discrimination, so that, as a rule, its protection indemnity already repairs the same damage.
Has the risk of double payment been eliminated?
The three recent rulings of the Supreme Court are definitely a solid basis for employers to contest any cumulation of indemnities, claimed by a dismissed employee, that are based on the same underlying facts and repair the same damage.
However, this does not mean that any cumulation has now been abolished. Indeed, where the employee’s claims are based on a distinct fault and do not compensate for the same damage, the Supreme Court has not explicitly ruled out combining these indemnities.
What should employers do now?
- Recalculate your exposure claim by claim: identify the damage each indemnity repairs; if multiple indemnities cover the same damage, they must not be added-up.
- Revisit settlement positions in pending or upcoming disputes.
- Make the chronology tell one story: warning, sanction and dismissal should be consistent. If you dismiss on facts you already sanctioned, you should be able to prove “new elements” when proceeding with a dismissal.
- Choose and word the reasons for dismissal with care: reasons linked to sick leave or to a mandate invite discrimination and protection claims.
Sources: Cass., 12 October 2026, S.20.0061.F, S.23.0034.F and S.25.0025.F.
If you would like further information or assistance regarding this topic, please contact Philippe De Wulf (Philippe.DeWulf@altius.com), Emma Van Caenegem (Emma.VanCaenegem@altius.com) or Esther Soetens (Esther.Soetens@altius.com).
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