Be Aware Belgium April 2017

Be Aware Belgium Series

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Limits to political, philosophical and religious neutrality towards customers?

The Court of Justice of the European Union (CJEU) states that a dismissal based on an internal rules banning all employees from wearing visible political, philosophical or religious signs in the workplace does not constitute a direct discrimination. However, even if it is not a direct discrimination, this ban could be constitutive of an indirect discrimination if this limitation is not justified by a legitimate aim and if the means used are not appropriate and necessary.

On March 14 2017, the Court of Justice of the European Union (CJEU) took two decisions about dismissals based on the wearing of political, philosophical or religious signs. These two rulings give us the opportunity to define a matter that is subject to a lot of controversy.

The first decision may be summarized as follows: Ms. A was hired as a receptionist. When she was recruited, there was an unwritten rule forbidding employees to wear visible signs of their political, philosophical or religious beliefs in the workplace. A few years later, she made known her intention to wear the Islamic headscarf during working hours and her employer decided to change employment regulations by stipulating that "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs". Following her persistent willingness to wear the Islamic headscarf, Ms. A was fired based on the regulations. She challenged her dismissal before Belgian courts and the Court of cassation seized the CJEU to know whether this ban constitutes direct discrimination.

In that ruling the Court starts by noting that the internal rules which were established by the employer have a general scope, that they target any manifestation of beliefs without distinction and that they treat all company employees equally. Therefore, for the CJEU this rule does not constitute direct discrimination based on religion.

However, the Court then points out that it is not excluded that it constitutes indirect discrimination. As a matter of fact, this would be the case if it is established that this ban actually leads to a particular disadvantage for individuals who adhere to a religion or a specific belief. Thus, in order not to be considered indirect discrimination, the difference of treatment must be justified by a legitimate aim and the means used to achieve this aim must be appropriate and necessary.

According to the Court, the fact that an employer wants to display an image of neutrality towards customers is a legitimate aim. Similarly, prohibiting the wear of political, philosophical or religious signs is considered as appropriate if the policy of neutrality is truly pursued and applied in a consistent and systematic way within the company. As to the strictly necessary nature of the ban, it is met when the only employees concerned are those who are in contact with customers. Finally, the Court points out that it is also necessary for the national courts to verify if it was possible to offer another position to the employee which does not involve contact with customers.

In the second case, the situation is different. As a matter of fact, Ms. B was fired because she refused to remove her veil following a complaint from a customer.

In this case, the Court explains that it is important to check first if the dismissal is based on the non-compliance with an internal rule of the company prohibiting this behavior (as that was the case in the previous ruling). If any, the national courts must then check if the conditions that were identified in the first ruling are met (Is the difference of treatment is justified by a legitimate aim? Are the means used to achieve that aim appropriate and necessary?).

However, even if the dismissal is not based on an internal regulation, the difference of treatment may be justified if the characteristic constitutes an essential and determining requirement due to the nature of the occupation or the conditions of its exercise. In this case, it is therefore necessary to determine if the ban on wearing the veil is an essential and determining requirement with regard to the nature of Ms. B's professional activity. In this regard and according to the Court, only in very limited conditions can a feature linked to religion in particular be an essential and determining professional requirement. Indeed, this involves that the nature of the professional activity objectively requires it and that it does not include any subjective considerations, such as the employer's willingness to take into account the clients’ specific wishes, which was the case here.

In conclusion, the Court states that a dismissal based on an internal rules banning all employees from wearing visible political, philosophical or religious signs in the workplace does not constitute a direct discrimination. However, even if it is not a direct discrimination, this ban could be constitutive of an indirect discrimination if this limitation is not justified by a legitimate aim and if the means used are not appropriate and necessary. Conversely, the employer's willingness to take into account clients' wishes who do not want to be serviced by an employee wearing visible signs of his/her beliefs constitutes a discrimination since it cannot be considered to be an essential and determining professional requirement.

The Wage Norm Act: wage increases allowed for 2017-2018 gradually becoming clear

The maximum wage margin for 2017-2018 was set at 1.1% at the national level. In addition, the Act of 19 March 2017 sorted a few practical problems when implementing the Wage Norm Act.

The Act of 26 July 1996 on the promotion of employment and the preventive safeguarding of competitiveness provides a maximum wage increase which employers are allowed to grant per two-year period (2015-2016, 2017-2018, etc.) As its title indicates, this Act aims to keep the Belgian economy sufficiently attractive by preventing the labour costs in Belgium from increasing faster than in the neighbouring countries (Holland, France and Germany).

However, in the past there was quite some confusion as to how this Act needed to be implemented. Yet, through the interprofessional agreement for 2017 and 2018 and through the Act of 19 March 2017 amending the Act of 26 July 1996 on the promotion of employment and the preventive safeguarding of competitiveness, a number of issues with regard to this Act have now become clear.

First of all, there is an interprofessional agreement which was reached for the 2017-2018 time period. This agreement provides that the maximum margin for the evolution of labour costs for the 2017-2018 time period is set at 1.1 %. This political agreement was confirmed in collective bargaining agreement No. 119 which was concluded within the National Labour Council on 21 March 2017. In view of this maximum margin, negotiations can now take place within the joint committees regarding to what extent and how this maximum margin will be used. Only when it is clear what wage increase is required based on the collective bargaining agreements at the level of the joint committee, employers can verify whether there is still some room, under the Wage Norm Act, for granting wage increases in 2017-2018 at the company level or individually. As a matter of fact, the 1.1% margin is indeed a maximum number which industries do not need to use entirely. In addition, industries are free to determine to what extent wage increases or new benefits that would be granted at the company level or individually would be allocated to this margin.

The Act of 19 March 2017 introduced a new definition of "labour costs" by specifying that this concept contains the complete remuneration in money or in kind and refers to the European regulations regarding financial statements. Hence, it is now clear that the Norm Wage Act shall be evaluated at the company level and not at the level of the individual employee.

Because in the past, forecasts about the evolution of labour costs turned out inaccurate several times, since the Act of 19 March 2017 the historical labour cost handicap also needs to be taken into account, this is the way in which labour costs in Belgium have been increasing faster than in the neighbouring countries since 1996. Also, when setting the wage margin for the next two years, both a correction and a safety margin need to be applied in order to rectify possibly wrong forecasts from the past.

The main change, however, is the sanction in case of a violation of the Wage Norm Act. From now on, the Wage Norm Act explicitly provides that the employer is subject to an administrative fine ranging from €250 to €5.000 in case of a violation and that this fine needs to be multiplied by the number of employees concerned, with a maximum of 100, that is.

Because the evolution of labour costs is evaluated based on the average per employee, any violation will logically refer to all employees of the employer concerned. As such, any employer with at least 100 employees is subject to a fine up until € 500 000 in case of a violation.

Furthermore, the fact that the Wage Norm Act now clearly needs to be evaluated at the employer level and the broad definition of labour costs make it fairly easy to verify compliance with the Wage Norm Act. As a matter of fact, it is not needed to verify the evolution of the salary and the various benefits per individual employee. All that is required is to compare the numbers of the financial statements for the financial years concerned. Although verification of compliance was a low priority for the social inspection services in the past, from now on, employers are highly recommended to be careful.

The maximum wage margin for 2017-2018 was set at 1.1% at the national level. In addition, the Act of 19 March 2017 sorted a few practical problems when implementing the Wage Norm Act.

Discrimination in recruitment: what measures must be taken in case of a disabled applicant?

The Liège Labour Court reminds us that the refusal to hire a worker based on his condition of obesity may constitute discrimination since this condition can be considered to be a disability.

On 20 June 2016 the Liège Labour Court ruled in a case of employment discrimination, the facts of which can be summarised as follows: Mr X applied for a position of driving school instructor and Mr. X had a job interview after several email exchanges with Ms Y (manager of driving school Z). After the interview he received an answer from Ms Y saying: “I gave it some thought and unfortunately, your physical profile to be an instructor in my driving school does not suit me. Did you already think about losing weight? I think it is a handicap for this job.”. Mr X decided to sue driving school Z based on the Act of 10 May 2007 aimed at combating certain discriminations.

This ruling gives us the opportunity to remind us of a few rules about discrimination in recruitment because, although the abovementioned Act was adopted ten years ago, it must be noted that this Act sometimes seems forgotten.

The reasoning of the Court was done in four steps. First of all, the Court equated the obesity of a worker to a “disability” based on European case-law. Even though obesity is indeed not a criterion directly protected by the Act of 2007, it is possible to consider the condition of obesity of a worker as a disability “where it entails a limitation resulting in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.

Following that, the Court upheld the Belgian case-law to the extent that it is not necessary that the discriminatory criterion is actually verified in order for the facts to be qualified as discrimination. When a decision is based on one of the criteria protected by the Act of 2007, there will be discrimination, even if the criterion is falsely attributed! In the case at hand, by considering Mr X's obesity as a “handicap for this job”, it does not matter if Mr X is actually suffering from a disability because Ms Y expressly assumed so.

Then, the issue of the justification still arose. When the distinction is based on disability, it can only be justified by essentials and defining professional requirements regarding the nature of the professional activities or their context. In this case, Ms Y had invoked the security of students as a justification but this was not based on concrete working conditions as Mr X had not been asked to try the vehicles of driving school Z and it was therefore not established that these vehicles would be too small.

Finally, discrimination can also arise because of the refusal to provide reasonable accommodation for disabled persons. In this case, no accommodation had been considered. In addition, the Court took the opportunity to recall that reasonable accommodation is not limited to physical accommodation but that is was also possible to offer adapted working conditions, such as the position of theoretical instructor or to offer Mr X to use his own vehicle to give lessons, as it was later done with another employer. However, these developments must be reasonable since they should not be a disproportionate burden for the employer.

This decision reminds us that the refusal to hire a worker based on his condition of obesity may constitute discrimination since this condition can be considered to be a disability. The Court confirmed that even if the criterion of discrimination is unfounded, the simple fact that it was assumed and thus that the decision was based on this criterion is sufficient to constitute discrimination. Finally, it is recalled that if it is not justified to dismiss the candidate based on his/her disability, the employer must take appropriate measures to enable a disabled person to access a job, to execute it or to progress in it.