Newsletter 2024 – 10

December 30, 2024

1 Office news

Mploy will continue to closely monitor current social law developments in 2025 and will provide clarification where necessary.

Steven Renette and Martijn Ronnen published an article in De Standaard on December 19, 2024, entitled "A contractor is not a policeman who can monitor his subcontractors.".

It is that time of year when we are flooded with lists. We are joining in. Steven Renette's opinion piece 'Do not let GPs judge disability' was the most-read opinion piece of 2024 in De Tijd. You can here read it again

2 Jurisprudence – time registration for domestic staff

Court of Justice 19 December 2024, C-531/23, Loredas

A national provision and its interpretation by national courts exempting domestic employers from the obligation to set up a system for recording the working time of domestic workers is contrary to the HGEU and Directive 2003/88 on the organisation of working time.

The Court reiterates CCOO and further develops

Since 2019, Spanish law has required employers to record the actual working hours worked by their employees daily, including the precise start and end times of each employee's workday. Certain employers, including households, have been exempted from this requirement.

A Spanish housekeeper claimed overtime pay. Her claim was dismissed at first instance due to a lack of evidence. The appeals court then referred the Spanish regulation to the Court of Justice.

The Court considers:

“In the absence of a system allowing objective and reliable measurement of the number of hours worked and at what times, and of the amount of overtime performed over and above normal working time, it will be extremely difficult, if not impossible in practice, for workers to enforce their rights under Article 31(2) of the Charter and Directive 2003/88 in order to make effective use of the limitation of weekly working time and the minimum daily and weekly rest periods provided for in that directive.” (point 38)

After further detailed consideration, the Court concludes that the Spanish legislation exempting domestic employers from recording working time is contrary to the Charter of Fundamental Rights of the EU and Directive 2003/88.

The Court reminds the national courts of their role in this regard: “In that regard, it is settled case-law that the obligation on the Member States arising from a directive to achieve the objective pursued by it and their obligation under Article 4(3) TEU to take all appropriate measures, whether general or particular, to ensure compliance with that obligation, applies to all the authorities of the Member States and, therefore, also to the courts, within the framework of their jurisdiction (judgment of 14 May 2019, CCOO, C‑55/18, EU:C:2019:402, paragraph 68).” (paragraph 47)

Does this mean that the time clock will be reintroduced in Belgium through judicial intervention? Time will tell.

For those who would like to know more: D. Ryckx, judge at the Brussels Labour Court, has devoted an extensive contribution to the CCOO judgment in Orientation 2024/9.

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

3 Jurisprudence – Music school terminates agreement with piano teacher

Cass. October 21, 2024, S.23.0017.N, www.juportal.be

A music school terminates a teacher's employment contract with a notice period. On the same day the notice is sent by registered mail, the school sends an email to the parents and students informing them that they are parting ways with the teacher due to a strained relationship, but that piano lessons will continue and be taught by new teachers.

The labor court had inferred from that email that the school did not intend to have the employee work as a piano teacher during the notice period and that it was an effective unilateral change to an essential element of the employment contract.

The labor court subsequently awarded the teacher severance pay. Ten days after the termination and the email, the teacher had acknowledged the school's breach of contract and subsequently claimed severance pay.

The Court of Cassation quashes that decision.

Dismissal is an act by which one party notifies the other party that it wishes to terminate the employment contract. No legal provision subjects the validity of the dismissal to specific forms. The outward expression of the intention to terminate, the notification of the dismissal, can occur orally, in writing, or implicitly.

The labor court did not establish that the school had informed the teacher that it had decided that the teacher would no longer be allowed to give piano lessons during the notice period, and had thus conveyed to the teacher the implicit intention to immediately terminate the employment contract. Therefore, it could not legally decide that the school had terminated the employment contract irregularly.

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

4 Jurisprudence – Application with a false name to prove discrimination

Arbh. Brussels 28 February 2024, JTT 2024, 491; www.unia.be and Arbrb. Brussels April 22, 2020, www.unia.be

While it is illegal to apply for a job under a false name and with false documents to prove discrimination, the evidence obtained in this way can still be used in court and will not be excluded from debates.

A minor difference in the treatment of an application that has no further consequences does not constitute discrimination.

The facts

To understand the judgment at first instance and on appeal, the facts are very important.

On June 28, 2017, the non-profit organization S posted a vacancy on its website for the position of "Client Advisor Payroll" in Wavre. Approximately 26 candidates applied. One of the first was MB, who applied on June 29. He had a phone interview with S. on July 7 and took a test on July 11. After passing the test, he was invited for an interview on August 8, 2017. He was ultimately hired.

Meanwhile, TM (Tatiana M.) also applied on July 25th, sending her cover letter and resume with a photo. Tatiana's surname and photo indicate that she is from sub-Saharan Africa. S.'s talent coordinator, Mrs. L., sent her an email on July 27th: "We have reviewed your application with interest and found many interesting points in it, but unfortunately, we have not considered you for this position." She added that she would save TM's information and automatically contact her if S. was looking for an employee who matches TM's profile. She also referred the latter to the website where S. regularly posts vacancies.

On August 1st, TM applied again, this time under the assumed name CC (Caroline C.). Her cover letter and resume were virtually identical in content, although some elements had been added to the letter from "CC." The structure and layout were also different. No photo was included.

On August 2nd, "CC" received an email from L. stating that the application contained numerous interesting points, but that many candidates had applied. The employer further stated that they would thoroughly review the applications and, depending on the outcome, would contact "CC" to discuss her motivation.

A Mrs. E. also applied. Her surname also suggests a foreign background. She received the same response to her application as "CC.".

On August 21, 2017, S. sent a message to TM, 'CC', and Mrs. E. that another candidate had been recruited.

A week later, S. sends an email to both TM and 'CC' with a vacancy for the position of 'Client Advisor Payroll' in Namur.

TM then contacted Unia, which sent a letter to S. on September 18, 2017. Unia argued that there had been a clear difference in treatment between TM's application and that of 'CC', and that this could only be explained by their different ethnic backgrounds. S.'s extensive written response was unconvincing, and she requested compensation. TMS counter-proposed to guide TM in her job search, offering three one-hour sessions on job market orientation, job hunting, and self-introduction, as well as the recruitment process. Unia considered this minimal proposal offensive because it implied TM's failure to be hired was her own fault.

No amicable settlement was reached, and Unia took the matter to court, claiming €5,000 in damages. TM later intervened voluntarily and claimed €16,758 in damages, equivalent to six months' wages.

Finally, the judgment of the labor court shows that the social inspectorate conducted an investigation.

The decision on the application with a false name and false documents

Both the labor tribunal and the labor court of appeal see no problem with the false application. Both laconically conclude that TM has indeed committed a crime punishable under Article 231 of the Dutch Criminal Code with a prison sentence and/or a fine.

The court then applies the Antigoon doctrine as confirmed by the Court of Cassation in a judgment of 10 March 2008. According to the court, the evidence is reliable and there has been no prejudice to S.'s right to a fair trial.

The labor court, strangely enough, reaches the same conclusion in an obiter dictum, citing more recent case law from the Court of Cassation (dated December 16, 2021). The court does not examine whether the right to a fair trial was not compromised for the non-profit organization S.

The decision on discrimination

Both the first-degree judge and the court of appeal concluded that discrimination had not been proven. The labor tribunal determined that Unia and TM had not proven any facts that could lead to a presumption of discrimination. The court of appeal ruled that this was indeed the case, but that the employer had proven that it had not discriminated.

It is stated that there were indeed differences in the application documents, that TM's application was handled and responded to in a different context and at a different time in the recruitment process than that of 'CC'. In addition, the court points out, as did the district court, that the minimal difference in treatment could also be due to chance, that S. had flagged a few more vacancies to TM (which did not respond to them...) and that Mrs E. was treated in the same way as 'CC', while her name also indicates a foreign origin.

What's striking about all this is that TM suffered no disadvantage from the alleged difference in treatment. Neither she nor her alter ego CC were recruited. The cited statements do not indicate whether a criminal investigation into the false name was initiated.

Conclusion

Employers be warned. The end justifies the means. A job application can easily be false. In Belgium, we have more than 30 prohibited discrimination criteria. The slightest – perceived – difference in treatment based on any of these criteria can lead to intervention by Unia or the Institute for the Equality of Women and Men, public institutions, resulting in proceedings up to and including an appeals court and a criminal investigation.

Ludo Vermeulen, attorney-partner

ludo.vermeulen@mploy.be

5 Jurisprudence – age limit in hospital doctor's contract does not constitute discrimination

Arbh. Brussels September 3, 2024, www.unia.be

An age limit in a hospital doctor's collaboration agreement does not constitute discrimination if there is a reasonable justification for the difference in treatment based on age.

Facts

In 2013, a surgeon entered into an individual agreement with a public-law hospital association.

The agreement stipulated that the physician's collaboration agreement would automatically and definitively end on the day he reached retirement age of 67. After that termination, the surgeon, according to the same contract, would still have the option to request permission to continue his work at the hospital.

The agreement automatically ended on March 1, 2021 as a result of reaching that retirement age.

Even before the termination, the surgeon had requested permission to continue his activities as a senior coach after March 1, 2021. His request was rejected. After reaching the age of 67, the individual would therefore no longer be a hospital doctor.

The surgeon believed he had been dismissed on the basis of his age and filed a discrimination claim.

Suspicion of age discrimination

The Brussels Labor Court found that the surgeon had proven facts that could suggest the existence of age discrimination. The collaboration agreement ended on March 1, 2021, due to the termination clause that explicitly referred to a specific age. The hospital subsequently rejected the surgeon's request to continue his activities as a senior coach after March 1, 2021. They opted to recruit young candidates.

Justification

Consequently, the burden of proof shifted to the hospital to provide rebuttal evidence. It had to either prove that the adopted position was not based on age but on other permissible criteria, or demonstrate justification.

The hospital referred to the justification provided in Article 12, Section 1 of the Anti-Discrimination Act. According to this provision, direct distinction based on age is not age discrimination if it is objectively and reasonably justified by a legitimate aim (including legitimate employment policy objectives), and the means of achieving that aim are appropriate and necessary.

According to the labor court, the hospital had a legitimate purpose in applying an age limit of 67. It is necessary to safeguard the quality of medical care and ensure its continuity.

The court then examined whether the measure was appropriate and necessary to achieve the desired objective. In doing so, the court arrived at the following considerations, among others.

Given the policy objectives, it is not unreasonable to predetermine a similar termination date for all hospital physicians. Reaching retirement age is a reasonable time to assess continued collaboration based on the established policy objectives. A general, objective age limit is even preferable to a situation where the termination date must be assessed individually in each specific case.
The Ghent Labor Court ruled in a judgment of September 4, 2020, that it is a perilous and delicate undertaking to have to assess repeatedly whether a hospital doctor is still suitable to practice his profession with quality.
The age limit was included in a general regulation that was established after consultation involving representatives of the hospital doctors.

The court therefore considered that the measure included in the general scheme was appropriate and did not go beyond what was necessary.

The labor court then examined whether the hospital, in the specific case of the surgeon in question, was actually pursuing the stated policy objectives. The hospital argued that extending the surgeon's full-time contract would mean that two young doctors could not be recruited. The refusal was therefore not based on the surgeon's age, but on the plan to recruit two young doctors. Furthermore, a doctor had already been appointed as a senior coach, so there was no need for a second senior coach.

According to the court, the hospital succeeded in substantiating the hospital's strategic policy vision, in particular the quality of service, with evidence.

It is irrelevant whether the collaboration with other retired physicians was continued. The specific circumstances in which this occurred differed from the situation of the surgeon involved.

The court dismissed the claim for damages as unfounded due to the lack of age discrimination.

Unia was not a party in this case.

Hans Van Rompaey, Partner Attorney
hans.vanrompaey@mploy.be