More and more employees want to continue working after reaching the legal retirement age, whether by choice or necessity. For employers, this raises a sensitive legal issue: under what conditions can they refuse such a request, and more generally, how can such situations be managed without risking a conviction for age discrimination?
Contrary to popular belief, an employment contract does not automatically end when an employee reaches the legal retirement age.
In many cases, the employment relationship is terminated when the employee reaches legal retirement age, after a period of notice for resignation has been given. However, what happens if an employee wishes to continue working? Can the employer dismiss him or her because he or she has reached legal retirement age?
Age: a criterion protected by law
Older employees are protected by law in two ways:
- It is forbidden to contractually stipulate that an employment contract will automatically end on reaching pensionable age;
- Age is a protected criterion in the 2007 anti-discrimination law, in the same way as health status, religion or origin.
Labour tribunals have broad discretion to assess whether dismissal on the grounds of age constitutes discrimination:
- According to some, age is a protected criterion and dismissal on this ground is prohibited - any dismissal on this ground is likely to constitute discrimination.
The Liège Labour Tribunal ordered an employer to pay damages equivalent to 6 months' remuneration because the mention of age and access to retirement on the letter of dismissal, on the C4 unemployment certificate and on several communications led to a presumption of discrimination (Labour Tribunal Liège, 7 March 2025, 23/3649/A).
- Others accept that it is possible, in certain cases, to dismiss a worker because of his or her age, if the dismissal meets a legitimate objective, is proportionate and is the most appropriate solution for achieving that objective.
For example, the Brussels Court of Labour has held that it is not discriminatory to consider the attainment of legal retirement age as an appropriate time to dismiss a worker, provided that this measure is appropriate and necessary to achieve the legitimate objective of promoting the employment of young people (Court of Labour Brussels, 12 March 2024, 2022/AB/637).
What are the sanctions in the event of discrimination?
If the judge considers that a dismissal is discriminatory, the employee may obtain lump-sum compensation for the loss suffered in the form of damages equivalent to 26 weeks' pay or corresponding to the actual loss suffered by the worker, if he or she can (among other things) demonstrate the extent of the loss. Criminal sanctions may also be imposed.
The right reflex: termination by mutual agreement
Age remains a sensitive and legally protected criterion. To avoid any risk of legal action, employers need to be particularly vigilant. A prudent solution is to sign a mutual termination agreement, possibly accompanied by compensation. Otherwise, it is recommended that only dismissals based on objective grounds unrelated to age should be considered.
By Juliette BAPS & Vincent MARCELLE, lawyers MOSAL
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