Is the dismissal of a worker unable to work due to illness (not disability) a discriminatory measure based on the state of health ? No, if the dismissal is justified by the need to reorganise the department.
A female worker is dismissed with a payment of compensation in lieu of notice during her inability to work due to burnout. She summons her former employer before the Brussels labour court :
- The employee had been employed since 2008. In February 2013, she was promoted and received a raise linked to objectives to be achieved in 2016 and then in 2018.
- From 1 July 2013 to 28 February 2014, the employee was unable to work due to burnout. Initially, the employer compensated for her absence using a temporary replacement. Then, a more in-depth reorganisation of the department took place and the employee’s tasks were redistributed.
- At the beginning of January 2014, a meeting was arranged to discuss possible terms of reintegration, which ultimately proved to be impossible. Moreover, the employee declared that she could not return to work for 20 % of her working hours as envisaged as her inability to work was to be extended until March 2014.
- On 17 February 2014, the employer terminated the employment contract due to reorganisation of the department and issued a compensatory payment in lieu of notice.
- The employee contests the reason for her dismissal, considering that the latter is discriminatory because she asserts that it is, in fact, related to her state of health, a criterion protected by the act of 10 May 2007 combating certain forms of discrimination, and asks for the employer to be ordered to pay damages.
- The employee intends to prove the existence of a presumption of discrimination (as required by article 28 of the above-mentioned act) amongst other things through the following facts :
- She is the only worker dismissed following the reorganisation while she had been promoted, while nothing distinguishes her from other employees apart from her state of health ;
- the reorganisation and the disappearance of her job are the direct consequences of her absence due to illness since :
- The reorganisation was never mentioned before her dismissal, not even at the meeting of 17 February 2014 which preceded the dismissal ;
- An email of 5 February 2014 refers to a meeting whose outcome would determine the best way of declaring the dismissal following the burnout ;
- A letter of 25 July 2014 expressly states that the employer has been obliged to reorganise the department following the employee’s absence.
- The employer considers that the dismissal is appropriately justified by the redistribution of the employee’s tasks made necessary due to her extended absence, thus leading to the disappearance of her job.
The Brussels Labour Court has deemed that the elements invoked by the employee do not make it possible to presume the existence of discrimination based on state of health. The Court has therefore decided that in the uncertainty over the employee’s date of return, it is understandable that the employer, after having initially compensated for the employee’s absence with temporary replacements, was finally forced to reorganise the department in a more structural manner, taking into account the many tasks assigned to the employee. The Court also recorded that the redistribution of her tasks was effective and proven. The employer was therefore justified in proceeding with the dismissal on the grounds of the organisational consequences of the employee’s absence. The Court consequently dismissed the employee’s application for damages.
The Court would have undoubtedly made a similar decision if an application had been made based on the Collective Labour Agreement n°109 (not yet in force at the time). In fact, the dismissal based on the operating needs of the company, the establishment or the department (and which might have been decided by a normal and reasonable employer) is not manifestly unreasonable.
However, in the case at hand the inability to work was not caused by a disability, in which case the decision of the Court may have been different. See in this respect https://reliancelaw.be/en/employer-sentenced-not-taken-appropriate-measures-employee-disability/
Christine Rizzo
Labour Court Brussels (3rd chamber)
13 June 2016, J.T.T. (Journal du Tribunal du Travail) [Labour Court Bulletin]
2018/1, p. 10