Dismissal during a ‘medical half-time’: discriminatory!

On 13 January 2020, the Labour Court of Liège took a decision condemning an employer to compensate an employee who was incapable to work for one year due to burn-out because he had dismissed her very shortly after she had resumed work under a medical half-time employment (part-time resumption of work authorised by the advisory doctor of the health insurance fund). According to the Court, this employee was discriminated against on the grounds of her state of health.

What are the facts?

In September 2016, an employee became incapable to work due to a burn-out shortly after she was promoted. On 11 September 2017, the employee resumed part-time work with the permission of the occupational health officer, after having been examined by him and having taken the necessary steps with the advisory physician of the health insurance fund.

A few days after returning to work, she is informed that she may be dismissed due to reorganisation of the department.

On 2 October 2017, she is dismissed with a severance payment. At her request, her employer gives her the reasons for her dismissal (reorganisation of the department). Consequently, she takes the matter to the Labour Court. She principally claims to be compensated for discriminatory dismissal on the grounds of disability or state of health.

How did the Court rule?

Repetition of some principles

1. The Act of 10 May 2007 combating certain forms of discrimination prohibits discrimination on the grounds of the criterion of disability or on the grounds of the current or future state of health in various fields, including the field of the employment relationship. It applies in particular to the conditions for access to employment, the provisions and the practices concerning working conditions, remuneration and termination of employment relations.

2. When an employee who considers himself to be a victim of discrimination invokes facts before the labour court which may give rise to a presumption of discrimination on the grounds of disability or state of health, it is the employer's responsibility to prove that there is no such discrimination. So, in such case, the burden of proof is reversed.

3. The employee who suffered an act of discrimination may enter a claim, before the Labour Court, for compensation for the damage suffered.

The party who committed the act of discrimination will have to pay a compensation to the employee equivalent to, at the employee's discretion, either the damage actually suffered (provided that the employee can prove the extent of the damage suffered), or a lump sum of which the amount is set by law.

Decision

The Labour Court is of the opinion that the employee invokes facts which give rise to a presumption of discrimination on the grounds of her state of health, namely her dismissal which takes place when she resumes work part-time after her burn-out.

So it is up to the employer to prove that the employee was not discriminated against on the grounds of her state of health and that the dismissal was therefore motivated by a reorganisation of the department which has nothing to do with her incapacity for work.

According to the court, the employer did not provide sufficient evidence to assume that this reorganisation was real and that it justified the dismissal of the employee.

The court concluded that the dismissal of the employee was decided on the grounds of her state of health (and in particular of her request for medical half-time employment).

Therefore, the employer is ordered to pay a fixed compensation of 6 months' salary.

If you want more information on the anti-discrimination regulations, please read our article on this subject in the May 2015 Memento of the Employer.

Source: Labour Court of Liège, 13 January 2020.