Careful with discriminatory dismissal: Labour Court of Appeal allows cumulative damages

As most employers know, Belgian anti-discrimination laws prohibit a dismissal that is based on discriminatory grounds. However, not every employer exercises the same caution before sending out a termination letter, even though caution is becoming increasingly important. We explain why this is the case.

Earlier this year, the Antwerp Labour Court of Appeal delivered a significant judgment allowing the cumulative awarding of three compensations for discrimination.

The employee in question was dismissed shortly after her maternity leave and during a period of postnatal depression. Although the employer justified the dismissal by arguing economic reasons due to the COVID-19 crisis, the Court ruled that the timing and circumstances of the dismissal indicated discrimination.

Notably, the Court decided in favor of the cumulative awarding of all three compensations claimed by the employee. Consequently, the employer was ordered to pay:

1. Six months' salary for violating maternity protection;
2. Six months' salary for gender discrimination;
3. Six months' salary for discrimination based on health condition.

According to the Court, each type of compensation serves a different protective purpose and compensates for a different form of damage. The protection compensation from the Labour Act aims to mitigate the negative consequences of a dismissal during maternity protection, while the lump-sum compensations from the Gender Act and the Anti-Discrimination Act address both material and moral damages resulting from discriminatory actions. Furthermore, the employee demonstrated that she suffered distinct damage from each of the three violations.

This judgment underscores once again the importance for employers in Belgium to exercise caution with dismissals that may constitute (or even suggest) discrimination. It also confirms the recent trend in the case law of the labour courts to allow for the cumulative awarding of various types of damages.

It is therefore crucial to consider legal protections with every dismissal decision and ensure that the dismissal is based on legitimate, non-discriminatory grounds.

An ounce of prevention is worth a pound of cure. Do you have any further questions? Crowe Spark Legal is ready to advise you on compliance with anti-discrimination legislation and other employment law matters.