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Belgium treats pregnancy/maternity as a protected status. When an employer dismisses an employee who is pregnant or has recently given birth, it must be able to prove that the reasons underlying the dismissal are completely unrelated to the pregnancy. If the employer fails to prove this, the employee can be awarded compensation for pregnancy protection amounting to six months’ gross remuneration.
Belgian law also provides for lump-sum compensation for discrimination based on (among others) gender and health status. This raises the question of whether a dismissed pregnant employee can also assert a claim for discrimination on the basis of gender and/or health status and, if so, whether compensation for protected status and damages for discrimination can be cumulated.
Since a legislative amendment that came into force on 19 January 2023, gender discrimination law now explicitly provides that the damages that the victim can claim for discrimination can be cumulated with compensation for protected status. The amendment also confirms the concept of multiple discrimination.
However, this change in the law does not have retroactive effect. Thus, for all dismissals made before this date, the question of whether these two allowances can be cumulated remained unsettled.
Court’s decision
The Labour Court upheld a tribunal’s ruling that (i) the employer did not prove that the employee’s dismissal was entirely foreign to her pregnancy/maternity and (ii) that the dismissal was at least also partly motivated by discrimination based on her physical condition as a result of childbirth (in this case, postnatal depression).
The fact that avoiding the guaranteed pay was a decisive element in the employer’s decision to dismiss the employee was considered by the Court as a reason directly linked to the childbirth. It was irrelevant that the wage cost was unexpected because the maternity rest was originally planned differently; as the court noted, complications after childbirth by their nature are not predictable in advance. A reason for dismissal that amounts, at least in part, to the employer’s desire to avoid the cost of guaranteed pay is a breach of maternity protection. It was therefore immaterial that the employer in this case also sought to invoke other grounds for dismissal. The Court stated that without the employee’s illness following maternity leave and childbirth, there was no need for reorganisation in the employer’s HR team, as these were always resolved by using temporary employment.
The Labour Court confirmed that there was also direct discrimination based on both gender and health status, so that the employee was entitled to two compensations for discrimination in addition to the compensation for maternity protection. The employer failed to prove that it would have dismissed the employee even if she had not been unfit for work due to illness as a result of childbirth.
Moreover, the Labour Court held that a cumulation of compensation for protected status due to pregnancy/maternity and discrimination based on gender and health status was indeed possible. The Court ruled that although anti-discrimination law and gender protection law are closely intertwined, they should be considered as two separate laws, each providing for lump-sum allowances in cases of discrimination. These laws do not expressly prohibit cumulative compensation. The same applies to the Labour Act. Since the employer violated two different discrimination laws and the Labour Act, the three compensations can be cumulated. Moreover, according to the court, there were also distinct damages in this case.
Consequently, the Court allowed the cumulation and ordered the employer to pay lump-sum compensation of six months’ gross remuneration for violation of maternity protection, six months’ gross remuneration for sex discrimination, and six months’ gross remuneration for discrimination based on health status.
Takeaway for Employers
When the dismissal of a pregnant employee or an employee who has given birth is at least partly based on her physical condition, there is a violation of maternity protection and potentially also gender or health-based discrimination. Employers must ensure that the motive for dismissing such an employee is legally valid and that the motive is also properly documented.
