Be Aware – April 2024

Belgian discrimination law: Can employees claim multiple indemnities?

The provisions of Belgian discrimination law in employment are spread over several acts:

• The Act of 10 May 2007 combatting certain forms of discrimination has age, sexual orientation, civil status, birth, fortune, belief or philosophical conviction, political conviction, trade union conviction, language, health, disability, a physical or genetic characteristic and social origin as protected criteria.
• The Act of 10 May 2007 combatting discrimination between women and men.
• The Act of 30 July 1981 combatting certain acts driven by racism or xenophobia.
• The Labour Act of 16 March 1971 Act includes provisions on the protection of pregnant workers.

Each of these acts stipulates a specific protection against dismissal. An employer can still terminate an employee’s contract, but they have to prove that the reasons for the termination are unrelated to the protection. If the employer can’t prove this, all four acts stipulate that the worker can claim a lump sum indemnity of six months’ pay. But can an employee claim several lump sum indemnities if the employer has violated different acts? The Employment Appeal Tribunal of Antwerp examined this question in a judgement of 4 January 2024.

The case concerned an employee who had given birth. At the end of her maternity leave, she fell ill due to postnatal depression, and she provided her employer with a medical certificate confirming a month’s sick leave. A couple of days later, the employer terminated her employment contract, saying it had to reduce costs. The employer openly added it wanted to avoid having to pay the sick pay the employee would have been entitled to if she’d stayed in her job.

The dismissal took place in August 2020 and the employer gave COVID-19 as a reason for the need to reduce costs, but the employer couldn’t prove it. The employee worked in HR, so COVID-19 actually increased her workload. The employer also couldn’t give a legitimate reason to explain why that specific employee had to be terminated and not one of the four other employees in the HR department.

The Employment Appeal Tribunal pointed out that all four acts state the reasons for termination can’t be related to the protection against dismissal. This implies that the protection is violated as soon as the protected ground was one of the reasons. The acts don’t stipulate that the prohibited reason must be the sole reason or even the main reason. The mere fact the employer can establish a valid reason for the termination is insufficient since the protection would still be infringed if there were several reasons for the dismissal and the prohibited reason was one of them.

This implies protections against dismissal can in principle be accumulated. The fact gender was one of the reasons for dismissal doesn’t mean a protected criterion under the general discrimination act (for instance age) wasn’t also one of the criteria.

At the time of the case, there was no regulation on whether the four acts could be combined. An act of 15 November 2022 changed this. It added a provision to all four acts stipulating the six-month protection indemnity can be accumulated with other protection indemnities, unless the legislation expressly excludes it. None of the four acts includes an express exclusion.

In the case at hand, the employer terminated the employee as a reaction to her absence because of postnatal depression. Because the employer failed to prove the dismissal was unrelated to the pregnancy, the Employment Appeal Tribunal concluded that it should pay the protection indemnity under the 1971 Labour Act.

The Employment Appeal Tribunal also pointed out that gender is a protected criterion under the Act of 10 May 2007 combatting discrimination between women and men. So a violation of the protection against dismissal in relation to pregnancy stipulated in the Labour Act is also a violation of the prohibition on discrimination based on gender. The Employment Appeal Tribunal ruled the employer should also pay the protection indemnity under this act.

Since sick leave was the reason for the termination, the Employment Appeal Tribunal concluded there was discrimination based on health and this violated the general discrimination Act of 10 May 2007. The employer had to pay another six-month protection indemnity stipulated in the act.

Protection against dismissal in relation to pregnancy applies as of the moment the employer is informed of the pregnancy up to one month after the end of maternity leave. The Labour Act stipulates that preparing a dismissal during the protected period that takes place at a later stage amounts to a dismissal. Postponing the dismissal to after the protection period has ended won’t make a difference if the employee can prove the decision was made during the protection period.

 

Collective dismissal procedure in Belgium: Does it apply when transferring employees?

Belgian law stipulates that an information and consultation procedure will be triggered if an employer terminates – for reasons not related to the employee – in a 60-day period, the contracts of:

• at least 10 employees in organisations with on average more than 20 and less than 100 workers;
• at least 10 % of the total number of workers in organisations with on average at least 100, but less than 300 workers; and
• at least 30 employees in organisations with at least 300 workers.

Quite often, when a company is in serious difficulties and a collective dismissal is likely, the company still hopes to avoid collective redundancy. This can be the case if an employer hopes some activities and employees can be transferred to another company. Or a group might want to close some departments and it has vacancies in other departments, but it can’t unilaterally transfer employees from the closed departments to the vacancies, for instance because the vacancies are in another company of the group.

So should companies follow the collective dismissal procedure in this situation?

When only taking into account the dates of the actual dismissals, the threshold will never be met if an alternative can be found. The key objective of the information and consultation procedure is to allow the staff representatives (or the employees themselves) to discuss with the management whether there are alternatives to collective dismissal. It would be contradictory if this procedure only became applicable once it was clear that a collective dismissal was unavoidable.

The Court of Justice dealt with this in a judgement of 22 February 2024.

The case concerned a Spanish company operating 20 hotels for various hotel owners. The contracts in relation to 13 of those hotels were terminated. The company employed 43 workers at its headquarters, which was more than it needed to manage the 7 remaining hotels. The company didn’t start a collective dismissal procedure but managed to convince the new operators of the hotels to take on staff members, so in the end only nine employees were made redundant. Based on number of dismissals, the threshold for a collective dismissal was not met.

But the Court of Justice ruled that the company should have followed the information and consultation procedure on collective dismissal. The decrease from 20 to 7 hotels meant the staff numbers at the headquarters had to be reduced considerably. The possibility to transfer employees to the new hotel operators was one of the points that should have been discussed with the staff representatives under the collective dismissal procedure.

Simply planning dismissals can be enough to trigger the collective dismissal procedure. But it can be difficult to determine when a plan becomes detailed enough to start the procedure. Whether or not a collective dismissal will take place is often beyond the employer’s control and depends on clients or the employer’s parent company.

In its judgement of 10 September 2009 (C-44/08), the Court of Justice ruled that the collective dismissal procedure can also apply if the employer doesn’t have all relevant information; for example, about the group’s plans to close its operations.