More employees protected from retaliation in case of discrimination, bullying and unwanted sexual behaviour

Since 1 June 2023, protection for employees against adverse treatment by the employer in response to a complaint or procedure relating to compliance with the rules on discrimination or unwanted conduct at work has been extended. This extension of protection against retaliation occurred through an amendment to the federal anti-discrimination laws and the Act on the well-being of workers.

Anti-discrimination laws have long provided a protection system so that employees who feel they are victims of discrimination would dare to bring up their condition without fearing retaliation from their employer. Workers who take formal steps because of bullying or unwanted behaviour also already enjoyed protection.

Until recently, only employees who had filed their own complaints and witnesses who had given written testimony as part of an official complaint were protected. According to the European Commission and the European Court of Justice, this protection system was inadequate, so Belgian legislation had to be amended.
First of all, protection is now extended to employees who have supported or defended or testified in favour of a protected person, formally or informally.

Since the Act on the well-being of workers also applies to discriminatory behaviour – in particular, violence and bullying related to a ground for discrimination (such as national or ethnic origin, gender, disability and age) or unwanted sexual behaviour at work – it was amended accordingly.

The starting point of protection was also changed. The protection now applies from the moment the employer knew or should have known about a report, complaint or procedure by the employee, even if it had not yet been formally notified. Therefore, employers should be cautious when seeking to take action against an employee who may be involved in a dispute over discrimination or unwanted behaviour at work. If the employer does take an adverse action that it cannot prove is not linked to steps taken by the protected person, it may be ordered to pay damages equal to six months' wages.

Another novelty is that both the federal anti-discrimination laws and the Act on the well-being of workers now expressly provide that it is possible to cumulate damages for discrimination with damages for failure to comply with the protection against retaliation. This means that an employer can be ordered to pay twice the amount of six months' wages.

For example: a pregnant employee is discriminated against by being denied a promotion because of her pregnancy. She starts legal proceedings, and obtains damages of six months' wages as compensation for the discrimination. The employer is upset that the employee started this legal action, and fires her. The employee also suffers damage from this dismissal, and may obtain a second compensation of six months' wages because of this retaliation.

Do you have questions about the rules regarding discrimination and well-being in the workplace, or other employment law questions? Then contact one of our specialists.