Anti-discrimination legislation: protection against prejudicial actions extended

A 07.04.2023 law extends the system of protection against prejudicial actions in 'anti-discrimination' legislation.

Are referred to: 

• the Act of 10 May 2007 combating discrimination between women and men;
• the Act of 30 July 1981 criminalising certain acts inspired by racism or xenophobia;
• the Act of 10 May 2007 combating certain forms of discrimination.

This includes:

• eliminating some of the formal requirements that were necessary to benefit from protection;
• extending protection to persons who informally defend the discriminated worker (e.g., a co-worker, a union representative).

A brief overview of the content of this law, which will come into force in 01.06.2023.

Protection against prejudicial actions

When a reporting, complaint or legal action is filed by the employee concerned by the alleged violation of one of the "anti-discrimination" laws in the field of employment relations, the employer may not take any prejudicial action against him or her on grounds related to the report, complaint or legal action (or their content).

This may be, for example, a reporting at company level or a complaint to the Directorate-General of the Inspectorate of Social Legislation/Directorate-General of the Inspectorate of Well-being at Work (FPS Employment, Labour and Social Dialogue).

The notion of prejudicial action is understood in a broad sense and includes, among other things, the unilateral modification of the working conditions, the termination of the employment contract, the prejudicial action that occurred after the termination.

Please note! The protection against prejudicial actions does not apply in the event of abuse of the procedures.

Burden of proof

Proof of reporting, complaint or legal action

In order to benefit from the protection against prejudicial actions, the employee concerned by the alleged violation of one of the "anti-discrimination" laws must demonstrate (by any legal means) that a reporting, complaint or legal action has been filed for this reason.

Proof of no correlation with the prejudicial action

If the employer takes prejudicial action against the employee concerned by the alleged violation within 12 months after having learned of the reporting or complaint, or after he could reasonably have learned of these actions, he must demonstrate that the prejudicial action is not related to the reporting or complaint (or their content). 

This burden of proof also lies with the employer where the prejudicial action took place after legal proceedings had been instituted, up to 3 months after the day on which the court decision became final.

Request for reinstatement possible

When the employer terminates the employment contract or unilaterally changes the working conditions of the employee concerned by the alleged violation of one of the "anti-discrimination" laws, for reasons related to the reporting, complaint or legal action, the latter may request to be reinstated in the company or to perform his or her duties under the same conditions as before.

The request for reinstatement must be made in writing within 30 days of the date of notification of the notice period, termination without notice or unilateral change of working conditions. The employer must take a position on the request within 30 days of the notification.

If the employer reinstates the employee in the company or allows him to perform his or her duties under the same conditions as before, he is obliged to:

• pay him or her the remuneration lost as a result of the dismissal or the change in working conditions;
• and pay all related (employer and employee) social security contributions.

Damages

The employer is obliged to pay damages to the employee concerned by the alleged violation:

• when, following his or her request for reinstatement, the employee is not reinstated or cannot perform his or her duties under the same conditions as before and the prejudicial action has been found to be in breach;
• when the employee has not applied for reinstatement and the prejudicial action has been found to be in breach;

The damages correspond, according to the employee's choice, either to a lump sum corresponding to 6 months' gross pay or to the actual damage suffered.

Protection of witnesses/support/advice

The same protection against prejudicial action as the employee concerned by the alleged violation of one of the "anti-discrimination" laws in the field of labour relations (and who has filed a reporting, complaint or legal action) applies to:

• persons who act as witnesses or who have filed a reporting or complaint in favour of the employee concerned by the alleged violation;
• persons who advise, aid or assist such employee;
• any person who invokes the alleged violation of any of the "anti-discrimination" laws;
• the person in whose favour the acts are performed.

Source: Act of 07.04.2023 amending the Act of 10 May 2007 combating discrimination between women and men, Act of 30 July 1981 criminalising certain acts inspired by racism or xenophobia, Act of 10 May 2007 combating certain forms of discrimination, and Act of 4 August 1996 on the well-being of workers during the performance of their work, as regards protection against prejudicial actions, Belgian Official Gazette 15.05.2023.