Newsletter 2023 – 08

1 Office news

Mploy welcomes Mr. Yves Thiery to the team. After a number of years in the business world, he is now returning to the legal profession with great enthusiasm. With his extensive experience as a lawyer in, among other things, discrimination files, we are convinced that he will be an added value for our office and our clients.

2 Publications

Steven Renette opinion piece this month in Het Belang van Limburg of overweight people and its impact on the workplace.

3 Rush hour HR – festive edition on October 17

For this anniversary edition we deviated from the standard format. The participants enjoyed the fascinating contribution of labor economist Prof. Stijn Baert about the state of the labor market. Robrecht Hendrickx explained very clearly why we must take seriously the importance of meaning in today's professional existence. Bart Teuwen shared his expertise in connection with a different approach to absenteeism policy.

Here you will find the aftermovie with a word from the three speakers.

4 Jurisprudence – discrimination

Labor Court of Antwerp June 6, 2023, www.unia.be

Morbid obesity is not necessarily a disability.

KH worked as a worker-driver at the garbage collection from March 26, 2018. He had to collect waste containers with a truck. To do this he had to get out of the truck regularly. He had a number of health problems, including morbid obesity, sleep apnea and back problems. The man was frequently absent for shorter or longer periods of time due to incapacity for work. The judgment shows that he was absent for a total of six months over a period of 2 years and 9 months. The company dismissed him on January 12, 2021 and paid 12 weeks' termination compensation. According to the employer, he repeatedly did not complete the planned schedule and other drivers and trucks had to be called in, which led to resentment among colleagues.

At first instance, the labor court awarded him damages for discriminatory dismissal on the grounds of disability and damages for refusing reasonable adjustments. This compensation amounted to six months' wages each time.

On appeal, the labor court declared both claims unfounded.

The court rules that KH does not demonstrate that there is a disability that is the result of long-term mental or psychological conditions that, in interaction with various barriers, prevent KH from participating fully, effectively and on an equal basis with other employees in working life. to take. He does not prove that he had a disability and even less that the employer was aware of that disability and its consequences. Naturally, the claim for compensation for refusing reasonable adjustments is also declared unfounded.

Also with regard to the alleged discrimination on the basis of health status, the court rules that KH does not prove any facts that could lead to suspicion of discrimination.

Nor does he prove a manifestly unreasonable dismissal. The employer resigned due to proven insufficient profitability. The court ruled that the judge cannot rule on the appropriateness of the employer's dismissal decision.

The court's considerations regarding the burden of proof are worth a literal quotation: “The reasons that T. communicated are in a certain sense presumed to be real and the real reason for the dismissal. If KH disputes these reasons, he must prove what he alleges. He must prove that the reasons given are either not the real reasons for the dismissal or that the dismissal motive was manifestly unreasonable. If T. makes the reasons cited credible or even probable, KH must prove that the reasons given are incorrect or that another reason, which he proves, is the basis for the dismissal and that this reason must be regarded as manifestly unreasonable. He must demonstrate that a normal reasonable employer would never have made such a decision. The burden of proof of the manifestly unreasonable nature of the dismissal rests with him. However, this does not mean that T. can remain passive. It must prove the reality of the reason it has communicated or of any other reason it may later adduce.”

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be

Antwerp Labor Court, Hasselt department March 27, 2023, www.unia.be

The employer does not discriminate when dismissing an employee who is incapacitated for work, but the dismissal is clearly unreasonable.

The facts can be summarized simply and briefly. Ms A. joined on January 1, 2020 with an employment contract of indefinite duration. She worked part-time, namely four-fifths, and held the position of “HR coordinator”.

From October 19, 2020, A. was continuously incapacitated for work due to illness. The last medical certificate dated April 19, 2021 and covered the period from May 1, 2021 to July 3, 2021.

On May 4, 2021, the employer summarily terminated the employment contract, after which he paid the termination compensation. To A.'s question about the grounds for dismissal, the employer replied that it had taken care of A.'s tasks regarding HR policy and payroll during her absence by deploying an independent HR consultant and that he was very satisfied with this. “This high-performance service as well as the cost has made us decide to permanently outsource the HR policy and to no longer fill this function internally.”

A. did not accept this and subsequently claimed compensation of 6 months' wages for discrimination. Subordinately, she claimed compensation for manifestly unreasonable dismissal of 7 weeks' wages.

The labor court rejected both claims, after which A. appealed.

The Labor Court firstly points out that the mere fact that a dismissal occurs during a period of incapacity for work is not sufficient as a fact that suggests discrimination. The employer cannot be blamed for calling on an independent HR consultant during A.'s (very long) absence and to his satisfaction. This cannot be regarded as “a staging with the intention of making the employee redundant”. The fact that the employer then proceeds to dismissal and has the HR work carried out further by the consultant is “a policy decision of the company that does not imply any suspicion of discrimination. The same decision could have been made without any absence due to illness.”

The court therefore rejects the claim for discrimination.

With regard to manifestly unreasonable dismissal, the court ruled that the employer "does not prove the reasons for dismissal that are related to the behavior or suitability of A. or the necessities of the company". In particular, the employer proves neither the cost savings nor the organizational benefits. This means that the dismissal took place without any reason and is therefore clearly unreasonable. A. is awarded the claimed compensation of seven weeks' wages. When determining the compensation, the court takes seven weeks into account, taking into account the degree of apparent unreasonableness and the relatively limited seniority.

In summary: a dismissal without reason that is not discriminatory because it is the result of a policy decision and is clearly unreasonable.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be

Liège Labor Court November 3, 2022, JTT 2023, 404

The social inspectorate may track down and copy e-mail traffic in the employer's IT system that it determines relates to compliance with social legislation. The inspectorate may also pass on this e-mail traffic to the Institute for the Equality of Women and Men (IGVM).

The reason for the dispute between a former employee Mrs. M. and the IGVM and the employer V. on the other hand was the dismissal of M. on December 22, 2017 in the context of a restructuring after her maternity leave ended on November 6, 2017. M., with the assistance of the IGVM, filed a claim for six months' wages each time for violation of Article 40 of the Labor Act and for gender discrimination. The court grants both claims. However, this brief discussion of the judgment concerns the court's opinion on the manner in which the TSW inspectors – at the request of the IGVM – conducted their investigation.

The court describes the working method of those inspectors. They visited the employer's offices and, using key words, searched the contents of the mailboxes of certain employees with a (well...) key position, including the personnel director and M's manager. They found "incriminating" e-mails emails, which they submitted to the IGVM with a report. (Experience teaches us that this form of investigation is a common practice at the social inspectorate.) TSW concluded that it could not be established with certainty that M. had been dismissed in the context of the restructuring nor that she had been dismissed due to her pregnancy and childbirth. dismissed.

What does the law say? The Social Criminal Code (Soc.Sw.) makes a distinction with regard to the powers of the inspectorate depending on:

• information carriers containing either social data (payslips, time registration, social security returns, etc.), or any other data that must be drawn up, maintained or stored under legislation (invoices, VAT returns, permits, etc.);
• information carriers with any other data.

In every handbook we read that it follows from the provisions of Articles 28 and 29 of the Social Criminal Code that inspectors may not only request the presentation of the first type of information carriers. In certain circumstances (and therefore not always) they may also actively track down these information carriers. The social inspectors may only request the submission of the second type of information carriers (see Article 29). They therefore do not the authority to detect information carriers that contain other data themselves (see, among others, W. van Eeckhoutte, Sociaal Compendium Arbeidsrecht 22-23, 3336, no. 5756).

In the investigation described above, the inspectorate does not request the submission of information carriers. The inspectors will track down these information carriers themselves.

What is highly surprising and disturbing is the fact that the court deduces from Article 29 of the Social Criminal Code that the inspectors were allowed to have the information carriers presented to them and to investigate them. Without saying this in so many words, according to the court, it means that they are also allowed to track them down. carte blanche by the judge to drag the net through all information carriers, i.e. through all cabinets and all servers that they find at an employer. The latter apparently has no fundamental rights. The fact that the inspectors also violate the privacy rights of other employees is collateral damage.

The right of search was created for the benefit of the social inspection by a law of 20 July 2006 and was described in legal doctrine (by a former head of TSW) as a “not everyday and necessary evil in exceptional cases” (P. Vanden Broeck, “The powers of the labor inspectorate”, in Y. Jorens (ed.), Social criminal law: From control to conviction, Brugge, die Keure, 2011, 123). The judiciary apparently rules differently.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be