On 20 July 2011, a law has been published in the Belgian Official Journal protecting new fathers against dismissal in case they take up paternity leave. This protection against dismissal is not absolute: the employee may be dismissed, but the employer must prove that the reason for dismissal is unrelated to the taking up of paternity leave.

New fathers (or co-parents, see hereafter) can take up paternity leave on the basis of article 30 of the Employment Agreement Act of 3 July 1978. Paternity leave can not only be taken up by the "biological father", but also by the person who is either married or legally cohabiting or living together for an uninterrupted period of 3 years with the person whose affiliation to the child has been established. In case of a relationship between same-sex partners, the co-parent can thus take up "paternity leave", or better said "birth leave", as well. The "father" or co-parent can take up 10 days of leave within the four months following the date of birth. The employer is obliged to pay out the normal salary during the first 3 days of leave. For the next 7 days the employee will receive an allowance under the public health insurance scheme.

The employer is not allowed to dismiss an employee who has asserted his right to paternity leave unless the employer can prove that the dismissal took place for other reasons. If the employer can not prove that the dismissal occurred for a reason unrelated to the taking up of paternity leave, or in absence of any reason, the employer must pay a lump sum indemnity. This indemnity equals three months remuneration, in addition to the indemnity due to the employee for the termination of the employment agreement. However, this indemnity cannot be accumulated with other protection indemnities.

This protection against dismissal applies as from the written notification to the employer until three months after.

In the future, the employer is obliged to verify whether the employee benefits from this protection or not, before he proceeds with his dismissal. If the employee needs to be dismissed during the period of protection, the employer must be able to prove that the dismissal was given for other reasons than those related to taking up of paternity leave.

For further information, contact: employment@liedekerke.com