In principle, an employee can only waive such rights after termination of the employment contract, provided a settlement agreement has been concluded with his employer.
In order to be valid, a settlement agreement must meet various conditions, among others the lack of absence of consensus ad idem amongst the parties, mutual concessions by the parties (granting "something extra" on top of the parties' legal rights), etc.
For the employer it is crucial that the settlement agreement includes a clear waiver clause, by which the parties mutually undertake not to make any claims arising from the execution and the termination of the employment contract.
The validity of waiver clauses in settlement agreements is rigorously evaluated by Belgian tribunals and in practice often leads to discussions between employers and their (former) employees.
This became clear, once again, in a recent judgment dated 1 March 2016 by the Brussels Labour Court (Brussels Labour Court 1 March 2016, G.R. 2015/AB/13).
The case involved an employee whose employment contract was terminated by mutual consent with the employer through the signing of a settlement agreement. In this settlement agreement the parties agreed neither to honour a notice period, nor to pay an indemnity in lieu of notice. Additionally, the employer committed to paying a fixed compensation of €1000 to the employee. The settlement agreement between the parties contained a fairly vague waiver clause, waiving "all contractual and other claims under any legislation".
After signing this settlement agreement, the employee claimed additional payments resulting from the execution of the employment contract, among other things, payment of arrears of salary and holiday pay. The employer denied owing any compensations by referring to the waiver clause mentioned above.
The employee brought the case before court to contest the validity of the waiver clause, among other things. At the first instance the settlement agreement was declared void by the Brussels labour tribunal because of absence of consensus ad idem ono the part of the employee. As a consequence, the labour tribunal did not take into account the aforementioned waiver clause.
The employer appealed this decision before the Brussels labour court.
First, the court ruled that the settlement agreement was not void and subsequently it evaluated the validity of the waiver clause.
In doing so, the court stressed that the waiver of a right is not presumed and that this can only be derived from facts or acts that cannot be interpreted otherwise. According to the court, this entails that a waiver of a right should be sufficiently precise and that it should be formulated in explicit and clear terms.
Moreover, the court stated that a waiver by the employee is only possible upon termination of the employment contract, since as of then "any risk of pressure onto the employee disappears". In this matter it was not the case, since the settlement agreement had been concluded before the agreed termination date.
The court found that the waiver clause was very vague and open to different interpretations, and that there is no clarification whatsoever as to what rights they wanted to waive.
As a consequence, the waiver clause was declared void by the court. As a result, the employer lost its contractual protection against the employee's claims, enabling the latter to still claim the aforementioned arrears from the employer.
An employee can only waive his rights arising from his employment contract after its termination, by concluding a valid settlement agreement with his employer. Special attention should be paid to the wording of the waiver clause: it should be sufficiently clear, accurate and not open to interpretation.