Newsletter 2024 – 03

2 Case law – cumulation of protection payments

Arbh. Antwerp, Antwerp department January 4, 2024, undisclosed.

The court confirms the judgment of the labor court dated October 18, 2022. It awards a dismissed employee three lump sum compensation corresponding to a total of eighteen months' wages.

The employer discriminated on the basis of both gender and health status and did not respect maternity protection. Facts. An employee A. informs her employer bv BS one week before the end of the period of maternity leave that she will be absent from work due to incapacity for work. BS bv is already aware of the health problems for both mother and child as a result of a difficult birth. The medical certificate submitted by the employee confirms complete incapacity for work for one month.

After receiving the medical certificate, BS proposes to consider the period of incapacity for work as a period of temporary unemployment due to force majeure - corona. A. does not agree with that. She wishes to receive a guaranteed wage due to illness, and not a (lower) benefit due to temporary unemployment.

A few days later she will be dismissed and she will receive her severance pay.

Claims. A. goes to court and sues

• compensation of 6 months' wages for dismissal during the period of protection due to pregnancy and childbirth (Article 40 of the Labor Code);
• compensation of 6 months' wages for discrimination on the grounds of gender;
• compensation of 6 months' wages for discrimination on the basis of health status.

We will not consider some other claims here.

About the protection compensation Article 40 of the Labor Act. In court, BS argues that the dismissal was motivated by economic motives such as loss of turnover and a declining workforce due to the corona crisis.

According to the court, BS has not met its burden of proof. The employer does not demonstrate the necessity of the dismissal nor does it prove that the reason for dismissal invoked is completely foreign to the employee's pregnancy or childbirth. The incapacity for work following maternity leave and the obligation for the BV to pay guaranteed wages are not reasons for dismissal that are foreign to the physical condition resulting from the pregnancy and childbirth. The court considers: “The desire to avoid payment of guaranteed wages due to illness is not a reason for dismissal that is foreign to the physical condition resulting from pregnancy or childbirth, when the illness results from childbirth. The obligation to pay the guaranteed wage is then related to the physical condition following the birth. If the labor court were to accept the wish to avoid guaranteed wages as a reason for dismissal that does not violate maternity protection, this would undermine the essence of this maternity protection.”

About gender discrimination compensation. The court then considers that the dismissal of an employee due to pregnancy constitutes direct discrimination on the grounds of gender. A. shows facts that may lead to suspicion of discrimination, including the timing of the dismissal and the avoidance of the wage costs of the guaranteed wage as a reason for the dismissal.

A dismissal in violation of Article 40 of the Labor Act is in principle also prohibited discrimination on the grounds of gender and such a dismissal is therefore also in violation of 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.

About compensation for discrimination in health status. Also with regard to discrimination on the basis of health status, the court refers to the chronology of the events surrounding the dismissal and to avoiding the wage costs of the guaranteed wage as a reason for dismissal. These give rise to a suspicion of discrimination on the basis of health status.

BS does not rebut that suspicion.

Cumulation. At first instance, the court rejected BS's defense that the compensation under the Gender Act may not be cumulated with the compensation under the General Anti-Discrimination Act. A. was discriminated against in two different ways. The court further considers: “The damage cannot be equated either: the moral damage of discrimination based on gender on the one hand and discrimination based on health status on the other hand do not coincide because it concerns another violation of A's personal integrity. : the moral damage that A. experienced as a result of the discrimination on the basis of gender arises from her pregnancy and childbirth that led to a traumatized baby and this damage must be distinguished from the moral damage resulting from the discrimination on the basis of her state of health , which has its origins in the state of health and incapacity for work of A. himself”.

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

The judgment does not contain any considerations about the cumulation of the protection compensation awarded under the Labor Act after dismissal during the period of dismissal protection due to childbirth and the protection compensation due to gender discrimination.

In the judgment of January 4, 2024, the court established that BS does not raise any substantiated grievances against this cumulation of compensation.

It refers to the new provision in the Gender Act that, from 19 January 2023, means that compensation for gender discrimination can be combined with protection compensation following the termination of an employment relationship, unless otherwise determined by or pursuant to a law. The court also refers to the new provisions in the General Discrimination Act, which mean that the judge (from June 30, 2023) will judge the appropriateness of the accumulation of fixed compensation in the event of cumulative and intersectional discrimination.

The court established that the dismissed employee justifies why she suffered different – ​​moral – damage as a result of the violation of each of the three laws. The court then agrees with the position of the labor court.

This means that no further justification is given for the cumulation of the compensation under Article 40 of the Labor Act and the compensation under the Gender Act. Although the court does point out that Article 40 of the Labor Act aims to protect the woman who has given birth against the adverse consequences of dismissal on her psychological and physical health. The protection compensation must compensate for these adverse consequences. We must then implicitly deduce from the judgment that the lump sum compensation for gender discrimination covers other moral damage. Unfortunately, the judgment does not elaborate on that issue. The Bergen Labor Court rejected the cumulation 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 accumulation of protection payments with care, if only because the number of grounds for discrimination is constantly increasing. In a situation as discussed above, the employee could, for example, also rely on discrimination on the basis of a disability under certain conditions. After all, the baby had suffered trauma due to complications during delivery. If this results in a disability, there could be 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, lawyer-partner
ludo.vermeulen@mploy.be

3 Judiciary – an undercover police officer visits the doctor

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

The criminal court in Hasselt pronounced a verdict on December 23, 2023 in a case that was announced in the press as one of the largest cases of social fraud exposed in the province. The total amount of benefit fraud was estimated at almost 13 million euros and involved no fewer than 350 files. Three key figures were prosecuted for, among other things, submitting incorrectly drawn up medical certificates for which they could have counted on the help of a psychiatrist and a neurosurgeon. These certificates were sold by the key figures to candidates who used them to claim sickness and disability benefits. The psychiatrist died during the course of the investigation, after which the criminal proceedings against him were dropped. The neurosurgeon was allowed to sit in the dock.

Facts. The labor prosecutor instituted criminal proceedings for successively fraud in social criminal law (art. 235 Soc. Code of Criminal Procedure), forgery and use of false documents in social criminal law (art. 232, 1° Soc. Code of Criminal Procedure) and participation in decision-making in a criminal organization (art. 324bis Criminal Code).

The use of undercover agents. We limit ourselves here to only one aspect of this case, namely the use 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 supervised by a magistrate. This should not be surprising: in order to uncover facts, the infiltrator is allowed to commit crimes (for example: using a false name).

As a rule, only police officers are allowed to carry out infiltration assignments. Social inspectors, for example, are not allowed to do that. To infiltrate, there must be serious indications that the targeted persons have committed or are still committing criminal offenses. Finally, the infiltration must be of a lasting nature, which means that the infiltrator must maintain lasting contact under a fictitious identity that may not last longer than three months from the authorization.

“Smooth writing style”. In the present case, the 100% fit infiltrators 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 disability certificate that could then be used to receive benefits. During one of these visits, according to the infiltrators, the key figure went so far as to directly instruct the psychiatrist about the period of incapacity for work, the percentage of disability to be retained and the date on which the visit would have taken place.

The neurosurgeon was acquitted now that it was not proven beyond reasonable doubt that his "flexible writing style" - as it is literally stated in the judgment - was consciously and deliberately used to grant an unjustified social advantage to those involved. In this context, the court points out that there are no precise rules for precisely determining the duration of incapacity for work. However, the presence of fraudulent intent is necessary in order to be able to conclude a guilty verdict for fraud in social criminal law. According to the court, it cannot be ruled out that the neurosurgeon himself was also misled by the pain complaints presented by the “patients” who presented themselves to him. He also did not issue any false certificates.

The key figures were all found guilty. The fraud was deemed proven for 258 files. The exact extent of the wrongfully received benefits cannot be deduced from the 103-page judgment as the payment institutions had not initiated civil proceedings. The court imposed prison sentences of up to three years (the majority of which were suspended) and fines of up to 32,000 euros on the key figures.

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