Belgium: Ghent Labour Court Holds Employer and Recruiter Accountable for Age Discrimination
A recent decision of the Labour Court of Appeal of Ghent confirms a significant development in the fight against age discrimination in recruitment practices, where recruitment agencies are held accountable for the discriminatory preferences of their clients.
Background of the Case
The dispute dates back to a 2018 recruitment process for a plant manager position. The employer was seeking a candidate who could lead existing staff, manage technical operations, and grow alongside the company. To fill the role, they enlisted the services of a recruitment agency.
The agency introduced a 49-year-old candidate, referred to as D. However, the employer quickly dismissed the application, stating they preferred someone “around 30 years old.” This age-based preference effectively drew a discriminatory line, excluding older candidates from consideration.
Shortly thereafter, another applicant, F.D., aged 57, applied for the same position after seeing the vacancy on the recruitment agency’s website. He submitted his CV and indicated he would follow up in person. F.D. later also contacted the employer directly and was informed they were seeking a ‘junior profile’. Emails between the agency and the employer revealed that F.D.’s application was placed on hold after this.
A revised version of the job posting later appeared online, now titled ‘Junior Plant Manager’, with reduced experience requirements. F.D. emailed the employer to ask why his experience was deemed unsuitable. The response reiterated their desire for someone who could “grow with the company” and “fit under current leadership.” Convinced that his age was the reason for rejection, F.D. filed a formal complaint for discrimination.
Legal Proceedings and Outcome
In First instance, the employer was condemned due to violating the Anti-Discrimination Act of 10 May 2007. F.D. was awarded €30,000 in damages. This decision was confirmed in appeal.
The Flemish Social Inspection had launched an investigation against the recruitment agency (as the rules regarding labour mediation are a regional competence) and concluded in a PV (report) that the recruitment agency had engaged in direct age discrimination in violation with the Decree on Equal Participation and the Decree on Private labour mediation. Nonetheless, in first instance, the recruitment agency was not held liable by the Labour Tribunal. However, UNIA appealed this decision, arguing that the agency had knowingly complied with the employer’s discriminatory preferences and had hereby engaged in discriminatory conduct itself. The appeal court agreed: by withholding F.D.’s CV after the employer expressed an age preference, the agency had actively participated in the discriminatory process. Notably, the candidates forwarded to the employer were aged 32, 23, and 27, further evidence of age-based filtering.
The agency was ultimately found guilty by the Labour Court of Appeal of violating the Anti-Discrimination Act of 2007, as well as Collective Labour Agreements No. 38 and No. 95, which govern fair recruitment practices and non-discrimination.
Implications
This ruling reinforces the principle that all parties involved in recruitment, employers and intermediaries alike, share responsibility for upholding anti-discrimination laws. It underscores the importance of vigilance in recruitment practices and highlights the legal consequences of age bias.
