In response to the Hakelbracht judgment of 20 June 2019 of the Court of Justice of the European Union (case C-404/18), the Belgian legislator has recently adopted new legislation providing for a system of enhanced protection against adverse action by employers for employees who raise their voices with respect to (potential) issues of discrimination.
(i) Hakelbracht judgment
Ms Hakelbracht applied for a job in a clothing shop in 2015. During this job application, Ms Hakelbracht informed the shop manager that she was pregnant. Following this job interview, the shop manager informed the employer that Ms Hakelbracht was a suitable candidate for the vacant position.
However, the employer ultimately refused to hire Ms Hakelbracht because of her pregnancy. The shop manager pointed out the illegal refusal but this was disregarded by the employer.
Ms Hakelbracht lodged a complaint with the Institute for the Equality of Women and Men (hereinafter referred to as: the Institute). A few months later, the shop manager was dismissed by the employer as she was accused of being the cause of Ms Hakelbracht's complaint following which the shop manager took the matter to the Institute as well.
In the subsequent court proceedings, the Belgian courts held that the shop manager was not protected against adverse action (in this case dismissal) since Belgian law, besides the actual victims of discrimination, only protected employees who testified as witnesses in court or during the investigation of the victim's complaint. Moreover, such witness testimony was subject to several formal requirements which were not met in the case at hand.
The shop manager therefore brought the case before the Court of Justice of the European Union claiming that she should be protected against adverse action even though the various formal requirements were not met. In its judgment, the Court ruled that the protection of witnesses must be applied broadly and cannot be limited by formal criteria. The intention is that discriminated persons as well as witnesses can take steps to detect, disclose and try to resolve cases of discrimination.
(ii) Amendments of Belgian legislation
The broad protection against adverse action provided for by the European legislator (EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation) was not properly transposed in the Belgian anti-discrimination acts (the Antiracism Act, the Antidiscrimination Act and the Gender Act).
The Act of 7 April 2023 amending the Act of 10 May 2007 to combat discrimination between women and men, the Act of 30 July 1981 to punish certain acts motivated by racism or xenophobia, the Act of 10 May 2007 to combat certain forms of discrimination, and the Act of 4 August 1996 on the wellbeing of workers in the performance of their work, as regards protection against adverse action (hereinafter referred to as: the Act) therefore introduced certain amendments to align the Belgian anti-discrimination legislation with the provisions of the aforementioned EU Directive.
The Act entered into force on 1 June 2023.
We hereby summarise the amendments of the Act which are relevant in the context of employment relationships.
Extension of the scope – First of all, the scope of protection is extended to the filing of a complaint, making a notification (e.g. to the company employing the person or to the Institute, etc.), initiating legal actions and the content of the complaint, notification or legal actions themselves whereas the previous version of the anti-discrimination acts only covered the filing of a complaint.
Making a notification and filing a complaint are broadly defined by the new anti-discrimination acts. For example, persons who, in a discussion with the employer, stand up for the person to whom the alleged violation of the anti-discrimination acts relates, are protected from adverse action as well as those who support the complaint without being a formal witness.
In addition, the scope is also extended to include other persons protected against adverse action.
Before the amendments of the anti-discrimination acts, the following persons were protected:
victims of the alleged violation of the anti-discrimination acts who file a complaint; and
persons who act as formal witnesses.
Pursuant to the Act, the following persons will also be protected going forward:
victims of the alleged violation of the anti-discrimination acts who make a notification as referred to above, or institute legal actions;
persons who act as informal witnesses, have filed a complaint or have made a notification, as referred to above, for the benefit of the victim of the alleged violation of the anti-discrimination acts;
persons who advise, help or assist the victim of the alleged violation; and
persons who disclose a violation of the anti-discrimination acts.
This however does not imply that these persons cannot be dismissed or otherwise be subject to adverse action for reasons which are unrelated to the filing of a complaint, making a notification as referred to above, initiating legal actions and the content of the complaint, notification or legal actions themselves.
Change of the starting point of the protection period – In addition, the starting point of the protection period was also amended. In the anti-discrimination acts, the starting point of the protection period is amended from the moment the complaint is filed to the moment the employer becomes aware or could reasonably have become aware of the notification as referred to above, complaint or legal action.
Less stringent formalities – The anti-discrimination acts now provide that to be protected against adverse action, the person concerned must prove that a notification as referred to above was made, a complaint was filed or a legal action was brought and that this proof may be provided by any legal means. It is therefore no longer necessary to provide a dated, signed and registered letter setting out the grounds of the complaint against the person who allegedly discriminates, as was previously required.
Anti-abuse provision – Further, the anti-discrimination acts include an anti-abuse provision. Employees who abuse the procedure (e.g. purely to benefit from the protection) do not benefit from protection against adverse action. In some cases, the employee may even be held to pay damages to the employer.
The previous version of the anti-discrimination acts did not provide an anti-abuse provision.
Cumulation of damages – Moreover, the anti-discrimination acts now explicitly provide for the possibility of cumulation of damages whereas this was not provided for in the previous version of the anti-discrimination acts. This means that damages for adverse action, can be cumulated with damages resulting from discrimination.
The amount of damages for adverse action is either a lump sum, calculated in the same way as the lump sum damages in cases of discrimination (in principle, six months' gross salary), or an amount equal to the actual damages suffered by the person (which has to be proven).
Consequently, the employer can be ordered to pay damages of 12 months' gross salary.
Reintegration – In the anti-discrimination acts, the victim of adverse action is no longer required to submit a request for reintegration to be able to subsequently claim damages if the reintegration was refused. It thus becomes easier for the employee to obtain damages in case of adverse action for discriminatory or non-discriminatory acts.
Wellbeing Act – Similar protection against adverse action is included in the legislation on wellbeing at work. Pursuant to the Act, the Wellbeing Act has therefore also been subject to similar amendments.
(iii) Take-away points
The protection against adverse action vis-à-vis employees who file a complaint regarding discrimination has become broader and less formal as a result of these legislative changes.
On the one hand, more facts are taken into account than before (the content of the complaint, notification or legal actions themselves), on the other hand, more persons are now protected against adverse action (e.g. the persons who advise, help or assist the person to whom the alleged violation relates). Employers should hence take into consideration that a larger number of employees is potentially protected against adverse action.
Another important change is that the anti-discrimination acts now explicitly state that damages for adverse action can be cumulated with damages resulting from discrimination. This could therefore result in damages of 12 months' gross salary.
Our Employment & Benefits team would be delighted to address any queries you may have in relation to this enhanced protection against adverse action by employers in the context of discrimination cases.