Newsletter 2023 – 08

1 Office news

Mploy welcomes Mr. Yves Thiery to the team. After several years in the corporate world, he is now diving back into the legal profession with great enthusiasm. With his extensive experience as a lawyer in, among other things, discrimination cases, we are convinced that he will be a valuable asset to our firm and our clients.

2 Publications

Mr. Steven Renette published an opinion piece in which he expresses his concern about the growing number 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. Participants enjoyed the engaging contribution of labor economist Prof. Stijn Baert on the state of the labor market. Robrecht Hendrickx clearly explained why we should take the importance of meaning in today's professional lives seriously. Bart Teuwen shared his expertise on a different approach to absenteeism policy.

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

4 Jurisprudence – discrimination

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

Morbid obesity is not necessarily a disability.

KH worked as a laborer-driver for garbage collection from March 26, 2018. He was assigned to collect waste containers with a truck, which required him to regularly get out of the truck. He had several health problems, including morbid obesity, sleep apnea, and back problems. He was frequently absent for short or long periods due to disability. The court ruling reveals that he was absent for a total of six months over a period of two years and nine months. The company dismissed him on January 12, 2021, and paid him 12 weeks' severance pay. According to the employer, he repeatedly failed to work according to the predetermined schedule, and other drivers and trucks had to be deployed, which led to resentment among his colleagues.

At first instance, the labor court awarded him compensation for discriminatory dismissal based on disability and compensation for refusing reasonable accommodations. These compensations each amounted to six months' salary.

On appeal, the Labor Court declared both claims unfounded.

The court ruled that KH failed to demonstrate a disability resulting from long-term mental or psychological conditions that, in interaction with various barriers, prevented KH from fully, effectively, and equally participating in working life. He failed to prove that he had a disability, much less that the employer was aware of that disability and its consequences. Naturally, the claim for damages for the refusal to provide reasonable accommodations was also dismissed.

The court also ruled that KH had not proven any facts that could give rise to the presumption of discrimination regarding the alleged discrimination based on health status.

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

The court's considerations regarding the burden of proof are worth quoting verbatim: "The reasons T. provided are, in a sense, presumed to be genuine and the real reason for the dismissal. If KH disputes these reasons, he must demonstrate his claims. He must prove that the reasons given are either not the real reasons for the dismissal, or that the reason for the dismissal was manifestly unreasonable. If T. makes the reasons invoked credible or even probable, KH must prove that the reasons given are incorrect or that another reason, which he proves, underlies the dismissal and that this reason must be considered manifestly unreasonable. He must demonstrate that a normally 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. may remain passive. She must prove the reality of the reason she provided or another reason she later puts forward."

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be

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

The employer does not discriminate in the dismissal of a disabled employee, but the dismissal is clearly unreasonable.

The facts are simple and concise. Ms. A. entered into employment on January 1, 2020, with a permanent contract. She worked part-time, specifically four-fifths of the time, and held the position of "HR coordinator.".

From October 19, 2020, A. was continuously incapacitated for work due to illness. The last medical certificate was 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 severance pay. When A. asked about the reasons for the dismissal, the employer replied that they had covered A.'s HR policy and payroll responsibilities during her absence by hiring an independent HR consultant, and that he was very satisfied. "This efficient service, as well as the cost, made us decide to permanently outsource the HR policy and no longer fill this role internally."

A. refused to accept this and subsequently claimed compensation equal to six months' wages for discrimination. Subsequently, she claimed compensation equal to seven weeks' wages for manifestly unfair dismissal.

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

The Labor Court first points out that the mere fact that dismissal occurs during a period of incapacity for work is not sufficient to raise a suspicion of discrimination. The employer cannot be blamed for engaging an independent HR consultant, to his satisfaction, during A.'s (very long) absence. This cannot be considered "a staged maneuver intended to make the employee redundant." The fact that the employer subsequently proceeds with dismissal and has the consultant continue to handle HR work is "a company policy decision that does not entail a presumption of discrimination. A similar decision could have been made without any absence due to illness."

The court therefore rejects the claim for discrimination.

Regarding the manifestly unreasonable dismissal, the court ruled that the employer "fails to prove the reasons for the dismissal related to A.'s conduct or suitability, or the company's needs." In particular, the employer failed to prove either the cost savings or the organizational benefits. Consequently, the dismissal was without cause and therefore manifestly unreasonable. A. was awarded the requested compensation of seven weeks' salary. In setting the compensation at seven weeks, the court took into account the degree of manifestly unreasonableness and the relatively limited length of service.

In summary: a dismissal without cause that is simultaneously non-discriminatory because it is the result of a policy decision and manifestly unreasonable.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be

Liège Court of Appeal, November 3, 2022, JTT 2023, 404

The social inspectorate may trace and copy email traffic in the employer's IT system that it determines relates to compliance with social legislation. The inspectorate may also forward this email traffic to the Institute for the Equality of Women and Men (IGVM).

The dispute between former employee Ms. M. and the IGVM, on the one hand, and employer V., on the other, was M.'s dismissal on December 22, 2017, as part of a restructuring after her maternity leave ended on November 6, 2017. With the assistance of the IGVM, M. filed a claim for six months' wages each for violation of Article 40 of the Labor Act and for gender discrimination. The court granted both claims. This brief discussion of the judgment, however, concerns the court's assessment of the manner in which the TSW inspectors—at the request of the IGVM—conducted their investigation.

The court describes the inspectors' working methods. They visited the employer's offices and, using keywords, searched the mailboxes of certain employees with (well...) key positions, including the HR director and M.'s manager. They found "incriminating" emails, which they submitted to the IGVM (Inspectorate for Work and Welfare) along with a report. (Experience shows that this type of investigation is common practice for the social inspectorate.) The TSW concluded that it could not be established with certainty that M. had been dismissed as part of the restructuring, nor that she had been dismissed due to her pregnancy and childbirth.

What does the law say? The Social Penal Code (Soc.Sw.) distinguishes between the inspectorate's powers, depending on whether it concerns:

• information carriers containing either social data (payslips, time records, social security declarations, …) or any other data that must be drawn up, maintained or stored pursuant to legislation (invoices, VAT declarations, permits, …);
• information carriers with any other data.

In every manual, we read that the provisions of Articles 28 and 29 of the Social Penal Code stipulate that inspectors may not only request the production of the first type of data carriers. In certain circumstances (and therefore not always), they may also actively search for these data carriers. Social inspectors may only request the production of the second type of data carriers (see Article 29). Therefore, they do not the authority to search for data carriers containing 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 data carriers. The inspectors will locate these data carriers themselves.

What is therefore highly surprising and disturbing is the fact that the court infers from Article 29 of the Social Criminal Code that the inspectors were entitled to have the data carriers presented to them and to proceed with an investigation. Without stating this explicitly, the court concludes that this also means they are entitled to search for them. The social inspectors are thus given carte blanche to drag the net through all data carriers, meaning all the cabinets and servers they encounter at an employer's premises. The latter apparently has no fundamental rights. The fact that the inspectors also violate the privacy rights of other employees in doing so constitutes collateral damage.

The right of search was established for the benefit of the Social Inspectorate by a law of July 20, 2006, and was described in legal doctrine (by a former head of TSW) as an “unusual and necessary evil in exceptional cases” (P. Vanden Broeck, “Decompetentie van de arbeidsinspectie”, in Y. Jorens (ed.), Sociaal strafrecht. Van controle tot vonnis, Bruges, die Keure, 2011, 123). Case law apparently holds otherwise.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be