Belgium: New changes to Discrimination law and bullying at work: extension of protection rules
On 16 February 2023, the act amending the various discrimination laws and welfare laws was approved by the Belgian parliament (Federal Chamber). This act amends the Gender Act of 2007, the Discrimination (General) Act of 2007, the Racism and Xenophobia Act of 1981 and the Welbeing Act of 1996. This act will soon be published in the Belgian Official Journal, with an expected date of entry into force of either 1 April 2023 or 1 May 2023.
The act provides a response to recent case law of both the Court of Justice, on a case directed against Belgium by the European Commission, namely the Hakelbracht judgment (CoJ. 20 June 2019, C-404/18, Hakelbracht), and the Court of Cassation of 20 January 2020 and 15 June 2020 (Cass. 20 January 2020, S.19.0019.F and Cass. 15 June 2020, S.19.0041.N).
The act contains four major amendments, which are discussed below.
1. Protection against retaliation related to the content of a complaint or report
The first objective of the act is to extend the protection of the employee against adverse measures taken by the employer, because of the recent case-law of the Belgian Court of Cassation. From now on, it explicitly provides that the employer may not take any adverse action against the employee for reasons related to either making a report, filing a complaint, bringing an action for discrimination, filing a request for a formal psychosocial intervention due to violence or bullying at work, or relating to the content of that report, complaint, action, or request. Henceforth, the employer must be able to prove that the adverse action is unrelated to both the report, complaint, legal action or request, and to facts that can be inferred from the content of this report, complaint, legal action or request. Previously, it was only stipulated that the dismissal should not be linked to the report, complaint, legal action or request and nothing was stipulated about their contents.
2. Any person who actively contributes to the benefit of the discrimination victim is protected
The second objective is to increase the amount of persons protected from adverse action by the employer because of the Hakelbracht judgment of the Court of Justice. Previously, only official witnesses were protected, who could produce a signed and dated document relating to their testimony. In the future, the following persons will enjoy the protection against adverse action:
- A person filing a report, complaint, or legal action.
- A person acting as a witness.
- A person who has made a report or complaint for the benefit of the person to whom the alleged breach relates (and the person for whose benefit such act(s) is alleged).
- A person to whom the alleged infringement relates, counsels, aids or assists (and the person for whose benefit such act(s) is alleged).
- A person who raised the violation of discrimination laws.
Regarding those who take actions on behalf of the victim, an “active contribution” is expected. This includes, for example, standing up for the victim in a discussion with the supervisor. A person who takes note of the facts and does not use this knowledge for the benefit of the victim is not protected from adverse action. The active contribution is necessary so that the employer knows, or could reasonably know, that the person was effectively acting for the benefit of the victim and is therefore protected.\
3. Integration request no longer an obligation
Next, the employee whose employment contract was terminated, or who was the victim of unilateral changes to his/her working conditions following an action against discrimination used to only have a right to a compensation if he/she had requested the reintegration in the company (which was usually denied). This reintegration request has now become optional for the (ex-)employee.
4. Cumulation of compensation claims
Finally, compensation for discrimination, or for damages due to bullying, violence or unwanted sexual behaviour can be cumulated with compensation for retaliation, because the employee had filed a complaint, for example. The reason is that these compensations do not cover the same damages. By example, in case of a discrimination against an employee due to her promotion not being granted because of her pregnancy, the victim claims and obtains damages from the court for discrimination. The employer is upset that the employee initiated legal proceedings and dismisses her. In such a case, the employee suffers another injury and may again claim and obtain damages. Should cumulation of these damages not be possible, this would mean that the employer could dismiss the employee without having to pay compensation.
- Employers considering the dismissal of a protected employee should therefore take additional care to ensure that the reasons for dismissal cannot be linked to the content of the request, notification, complaint, or legal action.
- Informal witnesses are also protected from reprisals.
- It is easier for workers to get compensation for retaliatory measures because the reintegration request is optional.
- Employers should take into account the accumulation of damages in case of retaliatory action.