Newsletter 2024 – 05

2 Jurisprudence – discrimination

Brussels Labor Court December 19, 2023

The fact that employers take better account of discrimination law is evident, to the extent that this was still necessary, from a judgment of the Brussels Labor Court of 19 December 2023.

Facts

Mrs. MH joined SMC (“bv”) as a sales assistant in 1992. In the autumn of 2010 she was unable to work for three months. From January 12, 2016 to the end of July 2017, she was almost continuously incapacitated for work. She tried to return to work during that period, but was unable to do so. The employer reacted somewhat displeased to the repeated absences.

On July 28, 2017, she was dismissed due to 'organizational difficulties' with payment of the full severance pay of 22 months and 13 weeks.

She asked for the specific reason for the dismissal. The BV responded that it had suffered serious organizational setbacks due to the almost continuous periods of disability and that it had had to adapt repeatedly, sometimes at the last minute. The BV emphasized that the repeated absences of varying duration seriously hampered the proper functioning of the company. In addition, the company listed the measures taken to compensate for its absences, including the hiring of new colleagues and the transfer of the customer portfolio.

MH contested her dismissal and claimed, among other things, compensation for discriminatory dismissal on the basis of her current and future state of health.

Decision

The court ruled that there was an appearance of discrimination. Not only was MH dismissed during her incapacity for work and the BV referred to the organizational difficulties on her C4, but the written motivation for her dismissal also showed a causal link between the dismissal and the protected criterion, the incapacity for work. The employer indeed repeated several times that MH's absences had had a negative impact and were the cause of organizational problems within the company.

The court establishes that the employer has indeed had to reorganize itself to accommodate MH's absence and describes the measures the company has taken to this end.

The Labor Court considers that the need for efficient work organization can be a legitimate goal within the meaning of anti-discrimination legislation insofar as dismissal is appropriate and necessary for this. In view of the measures taken by the company to accommodate her absence, her dismissal appeared to be neither necessary nor appropriate, nor related to a legitimate purpose.

Consequently, MH could rightly invoke the presumption of discrimination. According to the Labor Court, the BV did not refute the presumption, so the dismissal should be assessed as discriminatory. The court orders the employer to pay, in addition to the termination compensation of 22 months and 13 weeks, compensation equal to 6 months' wages.

Concerns

This is a catch-22 for the employer: the employer has no choice but to reorganize to accommodate the absence of an employee. That is obvious. Short absences can be accommodated by postponing work and perhaps keeping customers waiting or redistributing work. Other employees then have to work more. In the event of an absence of a longer duration, it is evident that these temporary solutions must be abandoned and that the employer will look for a more permanent solution, logically in the form of additional recruitment. He then faces the problem that in the current tight labor market there will be no candidates who will accept a replacement contract that can expire any day. In many cases, recruitment with an indefinite contract will be necessary. But the employer who reorganizes itself in this way then - according to this judgment - immediately no longer has the need and legitimate purpose to dismiss... Must the "substitute" make way upon the return of the long-term unfit employee? Eternal job security for the latter and eternal job insecurity for the replacement?

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

Dirk Heylen, lawyer
dirk.heylen@mploy.be

3 “Anyone who falls ill should be able to relax”: CM is conducting a striking campaign about long-term illness

De Morgen, May 22, 2024

You may have also seen the CM Health Fund video. Patrick has been incapacitated for work for 9 months. He poses in a cycling outfit with a Strava profile in the background showing that he has just cycled 120 kilometers. A rhetorical question is heard: “Do you think this is possible?” . Patrick then looks straight into the lens at you and adds: “And if it were you, would you think differently about it”? Through this campaign, the CM wants to break the stigma that long-term ill people are not allowed to relax during their period of illness. Because if they can relax, can't they work just as well?

The example from the video is involuntarily reminiscent of a ruling by the Brussels labor court from a few years ago. During her period of illness, a female employee took part in a cycling event organized as part of “Kom Op Tegen Kanker”. Her cycling team had to cover a total of 1,000 kilometers, of which she was responsible for 250 kilometers. When the employer became aware of this, he promptly dismissed the employee for urgent reasons. “Being unfit for work and cycling 1,000 kilometers in the meantime is incompatible and we regard it as a flagrant error that makes any further cooperation impossible with immediate effect,” was the dismissal motivation.

Wrongly. During the course of the procedure, the employee suggested that stress was the cause of her illness. According to the labor court, participation in the cycling tour did not hinder her recovery, as this took place in a club context and under medical supervision and guidance. The employer was ordered to pay severance compensation.

Things turned out differently for a fitness instructor who continued her independent profession as a pilates instructor during her period of illness. She was also dismissed for cause on a similar basis. The labor court in Turnhout recognized that fitness and pilates are not the same, but considered them to be similar activities. Where classical case law stipulates that the activity performed during the period of illness must not jeopardize the recovery of the sick employee, the labor court went one step further. According to the court, the dismissal was justified as the supervisor had not demonstrated that the activities as a pilates instructor would help her in her healing process, nor that this would have a beneficial effect on the course of the disease. Formulated this way, the side activity should not only not slow down recovery, but should even contribute to it.

Our system does not provide for any form of periodic contact between employer and employee during the period of illness. It is sufficient that the employee provides a certificate of incapacity for work which only states the duration of the illness period and whether or not the sick employee is allowed to leave the home. Ignorance often leads to misunderstanding. It is high time to rethink our dealings with sick employees and to put the policy on a more modern basis. Trust and responsibility of all actors should be central concepts in this.

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