Newsletter 2024 – 03

2 Jurisprudence – cumulative protection awards

Antwerp District Court, Antwerp Department, January 4, 2024, unpublished.

The Court of Appeal confirms the judgment of the Labour Tribunal dated 18 October 2022. It awards a dismissed employee three lump-sum payments corresponding to a total of eighteen months' salary. The employer discriminated on the basis of both gender and state of health and failed to respect maternity protection.

Facts. An employee A. informs her employer, BV BS, one week before the end of the maternity leave period that she will be absent from work due to incapacity for work. BS BV is already aware of the health problems affecting both mother and child as a result of a difficult delivery. The medical certificate submitted by the employee confirms complete incapacity for work for one month.

After receiving the medical certificate, the BS proposes to consider the period of incapacity for work as temporary unemployment due to force majeure – coronavirus. A. disagrees. She wishes to receive guaranteed sick pay, not a (lower) benefit due to temporary unemployment.

A few days later she was dismissed and received her severance pay.

Claims. A. goes to court and claims

• compensation equal to 6 months' salary for dismissal during the period of protection due to pregnancy and childbirth (Article 40 of the Labor Act);
• compensation equal to 6 months' salary for discrimination based on gender;
• compensation equal to 6 months' salary for discrimination based on health status.

We will leave some other claims out of consideration here.

Regarding the protective compensation under Article 40 of the Labor Act. BS argues in court that the dismissal was motivated by economic factors such as loss of turnover and a declining workforce due to the coronavirus crisis.

According to the Court, BS fails to meet the burden of proof resting upon it. The employer does not demonstrate the necessity of the dismissal, nor does it prove that the invoked reason for dismissal is entirely unrelated to the employee's pregnancy or childbirth. Incapacity for work following maternity leave and the obligation for the BV to pay guaranteed wages are not reasons for dismissal unrelated to the physical condition resulting from pregnancy and childbirth. The Court considers: “The desire to avoid the payment of guaranteed wages due to illness is not a reason for dismissal unrelated to the physical condition resulting from pregnancy or childbirth, when the illness follows from the delivery. After all, the obligation to pay guaranteed wages is then linked to the physical condition resulting from the delivery. If the Labour Court were to accept the desire to avoid guaranteed wages as a reason for dismissal that does not constitute a breach of maternity protection, this would undermine the essence of this maternity protection.”

Regarding compensation for sex discrimination. The court then considers that the dismissal of an employee due to pregnancy constitutes direct discrimination based on sex. A. demonstrates facts that could suggest discrimination, including the timing of the dismissal and the avoidance of the wage cost of the guaranteed wage as a reason for the dismissal.

Dismissal in violation of Article 40 of the Labor Act is, in principle, also prohibited discrimination based on sex, and therefore also violates the Gender Act. This is also evident from the case law of the Court of Justice.

The burden of proof therefore shifted to BS, which failed to prove that it did not discriminate on the grounds of gender.

Regarding compensation for health-related discrimination. Regarding discrimination based on health, the court also refers to the chronology of events surrounding the dismissal and to avoiding the wage costs of the guaranteed wage as grounds for dismissal. These constitute a presumption of discrimination based on health.

BS does not refute that presumption.

Cumulation. At first instance, the court rejected BS’s defense that compensation under the Gender Equality Act may not be cumulated with compensation under the General Anti-Discrimination Act. A. was discriminated against in two different ways. Furthermore, the court considers: “The damages cannot be equated either: the moral damage resulting from discrimination on the basis of sex on the one hand and discrimination on the basis of health status on the other does not coincide, since it concerns a different infringement of A.’s personal integrity: the moral damage A. suffered as a result of the discrimination on the basis of sex stems from her pregnancy and childbirth which led to a traumatized baby, and this damage must be distinguished from the moral damage resulting from the discrimination on the basis of her health status, which originates in A.’s own health status and incapacity for work.”

The court therefore awarded lump sum damages for both discrimination on the grounds of gender and for discrimination on the grounds of health.

The judgment does not contain considerations regarding the cumulative effect of the protective compensation awarded under the Labor Act following dismissal during the period of dismissal protection due to childbirth and the protective compensation due to sex discrimination.

In the judgment of 4 January 2024, the court found that BS had not put forward any substantiated complaints against this accumulation of compensation.

It refers to the new provision in the Gender Act, which, effective January 19, 2023, stipulates that compensation for gender discrimination can be combined with protection payments resulting from the termination of an employment relationship, unless otherwise provided by or pursuant to a law. The court also refers to the new provisions in the General Discrimination Act, which stipulate that the judge (effective June 30, 2023) will rule on the advisability of combining lump-sum compensation in cases of cumulative and intersectional discrimination.

The court finds that the dismissed employee explains why she suffered different – ​​non-pecuniary – damages as a result of the violation of each of the three laws. The court then concurs with the labor court's position.

This does not provide further justification for the cumulative effect of compensation under Article 40 of the Labor Act and compensation under the Gender Act. However, the court does point out that Article 40 of the Labor Act aims to protect women who have given birth from the adverse effects of dismissal on their mental and physical health. The protective compensation must compensate for these adverse effects. Implicitly, we must then infer from the judgment that the lump-sum compensation for gender discrimination covers a different non-pecuniary damage. Unfortunately, the judgment does not address this issue in more detail. The Bergen Labor Court rejected the cumulative effect in judgments of October 26, 2018, and March 15, 2013. The Brussels Labor Court did the same in a judgment of September 3, 2014.

In general, it seems advisable to handle the cumulative effects of protection awards with care, if only because the number of grounds for discrimination is constantly increasing. In a situation like the one discussed above, the employee could, under certain conditions, also invoke discrimination based on disability. After all, the baby had suffered trauma due to complications during delivery. If it has a disability as a result, this could constitute discrimination by association.

The Court of Justice made it clear in a judgment of 17 December 2015 that European law does not require a system of punitive damages (see paragraph 34 et seq.).

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

3 Jurisprudence – an undercover agent goes to visit a doctor

Corr. Hasselt, December 23, 2023 – BB ea c/ OM

The Hasselt Criminal Court delivered a verdict on December 23, 2023, in a case that was heralded in the press as one of the largest social fraud cases uncovered in the province. The total benefit fraud was estimated at nearly €13 million and involved no fewer than 350 files. Three key figures were prosecuted for, among other things, obtaining improperly prepared medical certificates, which they claimed would have required the assistance of a psychiatrist and a neurosurgeon. These certificates were sold by the key figures to applicants who, based on them, claimed sickness and disability benefits. The psychiatrist died during the investigation, after which the criminal charges against him were dropped. The neurosurgeon was, however, allowed to appear in the dock.

Facts. The Labour Prosecutor's Office instituted criminal prosecution for, successively, fraud under social criminal law (Art. 235 Social Security Code), forgery and use of false documents under social criminal law (Art. 232, 1° Social Security Code), and participation in decision-making within a criminal organization (Art. 324bis Social Security Code).

The deployment of undercover agents.  We will limit ourselves here to just one aspect of this case, namely the deployment of undercover agents. Undercover work – the correct term is “infiltration” – is strictly regulated as a special investigative method (BOM) in Article 47octies of the Code of Criminal Procedure and is always conducted under the supervision of a magistrate. This should come as no surprise: in order to uncover facts, the infiltrator is permitted to commit crimes (for example: the use of a false name).

As a rule, only police officers are permitted to carry out undercover investigations. Social inspectors, for example, are not. To be infiltrated, there must be serious indications that the targeted individuals have committed or are in the process of committing criminal offenses. Finally, the undercover operation must be sustainable, meaning the infiltrator must maintain ongoing contact under a fictitious identity, which may not exceed three months from the date of authorization.

“Flexible writing style”. In the present case, the infiltrators, who were 100% fit for work, contacted the key figures, after which an appointment was arranged for them with the doctors involved. After such a visit, they returned home with a certificate of incapacity for work that could then serve to receive benefits. During one of these visits, according to the infiltrators, things went so far that the key figure directly instructed the psychiatrist regarding the period of incapacity for work, the percentage of disability to be retained, and the date on which the visit allegedly took place.

The neurosurgeon was acquitted since it was not demonstrated beyond reasonable doubt that his “fluent writing style”—as stated literally in the judgment —was applied consciously and willfully to grant the persons concerned an unjustified social benefit. In this regard, the court points out that there are simply no precise rules for determining the exact duration of incapacity for work. However, the presence of fraudulent intent is necessary to conclude that the person is guilty of fraud under social criminal law. According to the court, it cannot be ruled out that the neurosurgeon himself was also misled by the alleged pain complaints of the “patients” who presented themselves to him. Furthermore, no false certificates were issued by him.

The key figures were all found guilty. The fraud was proven in 258 cases. The exact amount of the wrongfully received benefits cannot be determined from the 103-page verdict, as the payment institutions had not filed a civil suit. The court imposed prison sentences of up to three years (most of which were suspended) and fines of up to €32,000 on the key figures.

Steven Renette, lawyer-partner
steven.renette@mploy.be