Modifications concerning the protection against discrimination and psychosocial risks at work
On 16 February 2023 a draft law concerning the amendment of the different anti-discrimination acts and the Act on Well-Being of workers was approved by the House of Representatives.
This new act offers a solution to recent case law from the European Court of Justice, an infringement proceeding against Belgium by the European Commission, and to recent case law of the Court of Cassation.
The act will come into force on 1 March or 1 April 2023 (depending on the date of publication in the Belgian Official Gazette).
Below, we explain the most important modifications.
1. EXTENSION OF THE PROTECTION AGAINST DISMISSAL TO THE CONTENT OF A REQUEST, NOTIFICATION, COMPLAINT OR LEGAL ACTION
An employee who has filed a request for formal psychosocial intervention on the basis of the Act on Well-Being of workers or an employee who has made a request or a notification, has filed a complaint or took legal action on grounds of an alleged discrimination on the basis of the anti-discrimination legislation, enjoys protection against adverse measures. Presently the law determines that the employer cannot terminate the employment agreement of the employee concerned, unless the termination is due to reasons independent from the request, notification, complaint or legal action.
There has long been discussion in case law and legal doctrine over the precise scope of this protectional provision:
- According to the majority opinion it is not only prohibited to dismiss an employee for reasons concerning their request, notification, complaint or legal action, it is moreover prohibited to dismiss them on grounds which can be derived from the facts contained within.
- According to the minority opinion the former interpretation adds a condition to the law.
Through its judgements of 20 January 2020 and 15 June 2020, the Court of Cassation agreed with the minority opinion. According to the Court a dismissal can indeed be justified on grounds that can be derived from the facts invoked in the request, the notification, the complaint or the legal action.
Since the legislator considers that the position of the Court of Cassation will lead to a decrease in the protection of the employee and that it will undermine the main purpose of the protective measure, the legislation is being amended. From now on, the law explicitly states that the dismissal must not only not be linked to the request, notification, complaint or legal action, but must also be foreign to its content.
To do: Employers considering the dismissal of a protected employee, should additionally ensure that the reasons for the dismissal cannot be linked to the content of the request, notification, complaint or legal action.
2. EXPANSION OF PERSONS PROTECTED AGAINST RETALIATIONS
In the Hakelbracht judgment of 20 June 2019, the European Court of Justice ruled that the Belgian protection system was inadequate because it was limited to official witnesses who could produce a signed and dated document relating to their testimony. The European Commission had also initiated infringement proceedings against Belgium in that context.
Following the aforementioned ruling and infringement proceeding, the law extends the protection system against retaliatory measures to persons who have shown support or have come to the defence of the person who has filed a request or a complaint, made a notification or taken legal action regarding discrimination or psychosocial risks in the workplace.
This does require an active contribution, e.g. by standing up for the victim in a discussion with a supervisor or by reporting the situation to the HR department. A person who merely takes note of the facts but does not use that knowledge for the benefit of the victim is not protected from retaliatory measures. Such active contribution is required to ensure the employer knows or could reasonably know, that the employee was effectively acting for the benefit of the victim and is therefore protected.
To do: Keep in mind that “informal” witnesses are also protected against retaliatory measures.
3. CUMULATION OF INDEMNITIES
There was discussion as to whether an indemnity due to discrimination or exposure to a psychosocial risk on the one hand and an indemnity awarded as a result of retaliatory measures (e.g. dismissal) following a request, notification, complaint or legal action on the other hand, could be combined.
To end this discussion, the legislator has now explicitly included this cumulation possibility in the law. The idea is that the indemnities do not cover the same damages.
An example can clarify this: An employee is discriminated against because of her pregnancy or is harassed by her superior and claims and obtains an indemnity for discrimination or harassment. Being upset about this, the employer dismisses the employee. In such case, the employee suffers another damage and may again claim and obtain an indemnity.
To do: Take into account the possibility of cumulation of these indemnities in the event of retaliatory measures.
4. POSSIBILITY INSTEAD OF OBLIGATION TO SUBMIT A REINTEGRATION REQUEST
Under the current anti-discrimination legislation, an employee is in principle obliged to submit a reintegration request or a request to perform his function under the same conditions as before in order to be entitled to compensation for retaliatory measures taken against him.
Such request will become optional under the new legislation. It will thus become easier for employees to obtain compensation for retaliatory measures.