Downgrading after maternity leave: discrimination!

On 3 September 2019, the Brussels Labour Court ruled that an employer had to pay compensation to an employee who, on her return from maternity leave, was no longer able to take up the same or an equivalent position as she had before her absence. According to the court, this employee was discriminated against on the grounds of gender.

What are the facts?

In 2016, an employee takes maternity leave, followed by parental leave.

A few months earlier, she was given a positive evaluation and also a pay rise.

On her return, the woman is told that her department has been reorganised and it becomes clear that she has been downgraded.

The woman resigns and brings the employer before the labour court.

How did the Court rule?

Repetition of some principles

1. The Act of 10 May 2007 on the fight against gender discrimination (“Gender Act”) prohibits gender-based discrimination in various areas, including labour relations. It applies to the conditions for access to employment, the provisions and the practices concerning working conditions, wages and the termination of labour relations, among others.

2. The criteria for pregnancy, childbirth, maternity and gender reassignment are assimilated into the gender criterion.

3. When an employee who considers himself/herself to be a victim of discrimination invokes facts before the labour court which may give rise to a presumption of the existence of discrimination on grounds of gender, it is the employer's responsibility to prove that there is no such discrimination. In such case the burden of proof is reversed.

4. The Gender Act does not contain any provision stating that on returning from maternity leave the employee must take up the position she held before her absence or an equivalent position.

5. However, the court is of the opinion that on the basis of article 1134 of the Civil Code and article 20, §1, 1° of the Employment Contracts Act of 3 July 1978 (“the employer is obliged to employ the employee in the manner, at the time and at the place agreed upon") and on the grounds of the prohibition discrimination, the employer is obliged to employ the employee in the same or in an equivalent position upon her return from maternity leave.

Failure to comply with this obligation must be regarded as unfavourable treatment. The employer must therefore prove that the change of position is not at all related to the maternity leave and is therefore justified by other reasons.

6. The employee who was a victim of discrimination may enter a claim, before the Labour Court, for compensation for the damage suffered.

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

Decision

After having established that the employee was unable to take up her position or an equivalent position on her return from maternity leave, the Labour Court ruled that the employer had not provided evidence that these facts were not related to the taking of maternity leave. This means that this employee was discriminated against on the grounds of gender.

Therefore the employer has to pay compensation equal to 6 months' pay.

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

Sources: Labour Court of Brussels, 03 September 2019, G.C.L. No. 18/401/A; Act of 10 May 2007 on the fight against gender discrimination, Belgian Official Gazette of 30 May 2007.