‘Cumulative’ Maternity Dismissal Compensation – Employee Rights/ Labour Relations

The Antwerp Labour Court recently settled the question of
whether compensation for maternity protection and separate
compensation for discrimination can both be awarded for the same
dismissal under Belgian law.

Belgium treats pregnancy/maternity as a protected status. When
an employer dismisses an employee who is pregnant or has recently
given birth, it must be able to prove that the reasons underlying
the dismissal are completely unrelated to the pregnancy. If the
employer fails to prove this, the employee can be awarded
compensation for pregnancy protection amounting to six
months’ gross remuneration.

Belgian law also provides for lump-sum compensation for
discrimination based on (among others) gender and health status.
This raises the question of whether a dismissed pregnant employee
can also assert a claim for discrimination on the basis of gender
and/or health status and, if so, whether compensation for protected
status and damages for discrimination can be cumulated.

Since a legislative amendment that came into force on 19 January
2023, gender discrimination law now explicitly provides that the
damages that the victim can claim for discrimination can be
cumulated with compensation for protected status. The amendment
also confirms the concept of multiple discrimination.

However, this change in the law does not have retroactive
effect. Thus, for all dismissals made before this date, the
question of whether these two allowances can be cumulated remained
unsettled.

Court’s decision

The Labour Court upheld a tribunal’s ruling that (i) the
employer did not prove that the employee’s dismissal was
entirely foreign to her pregnancy/maternity and (ii) that the
dismissal was at least also partly motivated by discrimination
based on her physical condition as a result of childbirth (in this
case, postnatal depression).

The fact that avoiding the guaranteed pay was a decisive element
in the employer’s decision to dismiss the employee was
considered by the Court as a reason directly linked to the
childbirth. It was irrelevant that the wage cost was unexpected
because the maternity rest was originally planned differently; as
the court noted, complications after childbirth by their nature are
not predictable in advance. A reason for dismissal that amounts, at
least in part, to the employer’s desire to avoid the cost of
guaranteed pay is a breach of maternity protection. It was
therefore immaterial that the employer in this case also sought to
invoke other grounds for dismissal. The Court stated that without
the employee’s illness following maternity leave and
childbirth, there was no need for reorganisation in the
employer’s HR team, as these were always resolved by using
temporary employment.

The Labour Court confirmed that there was also direct
discrimination based on both gender and health status, so that the
employee was entitled to two compensations for discrimination in
addition to the compensation for  maternity protection. The
employer failed to prove that it would have dismissed the employee
even if she had not been unfit for work due to illness as a result
of childbirth.

Moreover, the Labour Court held that a cumulation of
compensation for protected status due to pregnancy/maternity and
discrimination based on gender and health status was indeed
possible. The Court ruled that although anti-discrimination law and
gender protection law are closely intertwined, they should be
considered as two separate laws, each providing for lump-sum
allowances in cases of discrimination. These laws do not expressly
prohibit cumulative compensation. The same applies to the Labour
Act. Since the employer violated two different discrimination laws
and the Labour Act, the three compensations can be cumulated.
Moreover, according to the court, there were also distinct damages
in this case.

Consequently, the Court allowed the cumulation and ordered the
employer to pay lump-sum compensation of six months’ gross
remuneration for violation of maternity protection, six
months’ gross remuneration for sex discrimination, and six
months’ gross remuneration for discrimination based on health
status.

Takeaway for Employers

When the dismissal of a pregnant employee or an employee who has
given birth is at least partly based on her physical condition,
there is a violation of maternity protection and potentially also
gender or health-based discrimination. Employers must ensure that
the motive for dismissing such an employee is legally valid and
that the motive is also properly documented.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Employment and HR from Belgium