In an interesting decision by the Court of Cassation of 2 February 2025, the Court rules on the implications of a bonusplan (wrongfully) drafted in English. The case involved an employee who, after termination, claimed payment of a bonus based on the company’s bonus plan. The bonus plan was however drafted in English, whilst – according to Flemish language regulations – it should have been drafted in Dutch.
The legal stuff
Any employment document of a Flanders based company drafted in English is null and void, by law. However, according to the same law, said nullity may not disadvantage the employee.
Earlier case law admitted that, based on the legal principles above, an employee could invoke the nullity of clauses of an English bonus plan that were not in his favor but at the same time could appeal to clauses favorable to him. Cherrypicking, if you like. More recent case law rejected said cherrypicking, on the ground that it gave the employee advantages to which parties never agreed to (in whatever language).
In practice?
In the case before the Court of Cassation, the employee claimed payment of a bonus, based on an English bonus plan. The employer argued that the nullity foreseen in Flemish language regulations, also applies to the employee, so that he cannot make a claim on the, for him favorable, provisions of the bonus plan. Still according to the employer, interpreting the language regulations as it allows cherrypicking, was wrong and the employee should have claimed damages, but he did not.
After 7 years, the Court of Cassation ruled that the employer’s interpretation was wrong. According to the court, the argument that an employee cannot invoke the provisions that are favorable to him and that are at the same time null and void, but can only request compensation for damages due to the nullity, is incorrect.
Take away?
Whether this will revamp the cherrypicking discussion, is still to be seen. What is clear though: employers better draft their bonus plans in the right (local) language.
