Be Aware – March 2024

The importance of adequately documenting the whole recruitment process

Prudent employers know it’s important to document all stages the recruitment process so there’s sufficient evidence if a rejected candidate challenges the process. On 28 February 2024, the Employment Appeal Tribunal of Brussels gave an interesting example illustrating how employers can unexpectedly end up in litigation regarding complying with discrimination law.

A payroll agency had a vacant position for a payroll advisor. It published a job advertisement, and 26 candidates applied. One of the candidates wanted to test the recruitment process by submitting two applications, one under her own name with her photo and one with a fake “Belgian” name, no information about immigration background and without a photo. The content of both applications was more or less the same, with the exception of some minor changes in the wording used. The second application was submitted a couple of days after the first.

Coincidentally, the person who handled the first application was on holiday when the second application was received, so the similarity of both applications was not noticed. The candidate with the genuine name was rejected. The candidate with the fake “Belgian” name was included in the reserve list. A different candidate was recruited in the end.

Both the candidate and Unia, the equal opportunity commission, challenged the difference in treatment and argued there was discrimination on the basis of ethnic origin. The candidate claimed the lump sum sanction of six months’ remuneration under the Act of 10 May 2007 combatting certain forms of discrimination for violating discrimination law. Both applications were similar, except the name and photo, and the candidate with information suggesting an immigration background was treated less favourably.

The main argument in favour of the candidate was a forged document with a fake name. According to the Employment Appeal Tribunal, this was considered irrelevant in the light of the so-called Antigoon case law of the Supreme Court. This case law stipulates that illegally obtained evidence can still be used in court cases, provided the evidence is still authentic and a fair trial is still possible.

The Employment Appeal Tribunal then pointed out that discrimination law covers any difference in treatment based on protected criteria. The fact neither candidate managed to reach the interview stage, let alone the stage of a job offer, was also considered irrelevant, as being included in the list of reserve candidates is clearly a favourable treatment compared to a complete rejection.

Under discrimination law, there’s a shared burden of proof. If the plaintiff can establish facts suggesting there might be a violation of discrimination law, the burden of proof shifts to the defendant, who must then establish there was no violation of discrimination law. These facts can either openly make the link with the protected criteria under discrimination law, or other elements suggesting a difference in treatment based on a protected criterion (for instance reliable statistics).

The plaintiff argued the difference in outcome of both candidates suggested a violation of discrimination law and shifted the burden of proof to the employer. The Employment Appeal Tribunal disagreed and ruled in favour of the defendant. It considered that though both applications were very similar, there were some differences. The wording used in the forged application was considered to be more convincing. The payroll agency could also establish that the recruiter had reviewed a number of weaker applications before reviewing the forged application, so the decision to include the application in the reserve list was considered to be the result of the context. The recruiter submitted a written statement confirming she considered both applications insufficient, but nevertheless decided to add the forged one to the reserve list in case no better alternative would be found.

In the end, all claims were considered to be unfounded. It took the employer in question more than six years to arrive at this outcome, as the facts dated from the summer of 2017.

Belgium to introduce protection against dismissal for employees undergoing fertility treatment

Employees undergoing fertility treatment often have to attend examinations or treatments that can only take place during normal working hours. Until now, there had been no specific legislation on this topic, so an employee either had to follow the normal procedure for taking a day’s holiday leave or sick leave.

If an employer dismissed an employee, there was no specific protection against dismissal. In most cases, a dismissed employee could say that a dismissal was manifestly unreasonable according to collective bargaining agreement n° 109. But this collective bargaining agreement is not always applicable, for instance during the first six months of service.

On 5 February 2024, a political agreement on a legislative change was reached.

In case of pregnancy, the Labour Act of 16 March 1971 stipulates that pregnant employees have the right to paid absence for medical examinations that cannot take place outside the normal working hours. While the initial proposal included a similar right for fertility treatment, it wasn’t included in the text that was approved by the Commission Social Affairs.

The existing rules will continue to apply to justify absences.

The new legislation does, however, stipulate a new specific protection against dismissal. If an employee informs their employer of the fertility treatment and confirms it with a medical certificate, the employer should not terminate the employment contract, unless for reasons totally unrelated to the fertility treatment or the absences. The employee has the right to ask for a communication with the reasons for the termination. And the employer has to prove there’s no link between those reasons and the fertility treatment.

If the employer cannot prove there’s no link, it will have to pay a protection indemnity of six months’ remuneration.

This protection applies up to two months after the fertility treatment. So there could be cases where an employer cannot know whether or not the specific protection still applies.

The Act of 10 May 2007 combatting discrimination between women and men does provide the following protected criteria “gender, pregnancy, medically assisted procreation, birth, breastfeeding, maternity, family responsibilities, gender identity, gender expression, sexual characteristics and medical or social transition”. The new legislation adds a criterion, ie absence related to fertility treatment.

While the new text was approved in the Committee for Social Affairs, it still has to be approved by the full assembly. As all parties in the Committee were in favour of the draft Act, this will probably happen in the coming weeks. The new legislation will enter into force ten days after it’s published in the Official Journal.