Be Aware - November 2021

Can an employee be dismissed during a period of long-term sick leave?

Although Belgian legislation does not expressly provide for employment protection for employees who are unfit for work (for long periods), in the event of dismissal during sick leave, the risk of it being considered a discriminatory dismissal based on the employee’s health status is something to take into account. If such discrimination is established, the victim is entitled to compensation of six months’ salary (or another amount subject to proof of actual damage suffered, of fault and of a causal link between fault and damage).

In case of discrimination based on legally protected characteristics, including health status, the law provides for the reversal of the burden of proof if the victim is able to demonstrate facts which may point to discrimination based on one of those protected characteristics and which can be specifically attributed to the defendant.

In that case – therefore, even without concrete evidence of discrimination – the burden of proof is reversed, meaning that the defendant will have to be able to prove that there was no discrimination.

In practice, for employers, the reversal of the burden of proof is often problematic in discrimination claims brought by (former) employees.

This has recently been highlighted once more by a ruling of the Brussels Labour Court of 25 May 2021. The case concerned a female employee who was dismissed in 2016. The employee had been on long-term sick leave from April 2016 which would initially end on 31 August 2016 but had been extended until 31 December 2016.

She was dismissed in October 2016, during the extended sick leave. According to her employer, she was not dismissed because of her sickness, but because of unsatisfactory performance and the disorganisation of the department due to her absence.

The female employee disagreed with her dismissal and went to court. At first instance, all her claims, including a claim for damages for discrimination based on herhealth status at the time of the dismissal, were dismissed by the labour tribunal. She appealed this decision, causing the Brussels Labour Court to consider the case.

In its ruling, the Court held that the female employee was able to demonstrate a presumption of discrimination since:

(i) she was dismissed during her extended sick leave; 

(ii) her last total performance appraisal dated back from well before her dismissal, so it could be assumed that the dismissal decision was not made based on that performance appraisal; and

(iii) there was no clear evidence of the “disorganisation of the department”, given that two years after her dismissal the employer had still not hired a replacement for the female employee.

The Court then assessed, in accordance with the reversal of the burden of proof, whether the employer was able to demonstrate that there was no discrimination. According to the Court, this was not the case, mainly because the employer was unable to provide concrete evidence of the true disorganisation of the department, and because there was no conclusive evidence of the female employee’s inadequate performance (unsigned reports, unclear evaluation scores, etc.).

As a result, the claim for damages for discrimination based on health status was awarded by the Labour Court.

The ruling discussed shows that, in case of a dismissal during (or directly following) long-term sick leave, courts and tribunals assess the employer’s dismissal file in a very critical light. However, if such a dismissal does prove necessary, it would be advisable for the employer to only proceed with the dismissal if valid reasons for dismissal can be demonstrated concretely.

Pierre Dion

DLA Piper employment publications of recent months

• Comment indemniser les volontaires (2nd partie), Trends-Tendances by Frederic Brasseur and Laurent De Surgeloose
• Round table discussion in HR Magazine “Données et GRH : mariage de raison ou liaison dangereuse?» with the participation of Thiébaud Groner (Baxter), Estelle Fryns and François Weerts (HR Magazine)

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