Year in review
As the purpose of this section is to highlight interesting decisions from the past year, this is not an exhaustive review of the case law in 2018.i Urgent cause
In a judgment of 12 January 2018, the Labour Court of Appeal of Brussels ruled that the intentional infliction of injury on a person in the workplace does not necessarily constitute an urgent reason to dismiss an employee (without notice or compensation). It is possible that the facts do not make the professional cooperation between the employer and the employee immediately and definitively impossible. In this case, the employee was a football player who, after being struck by an opponent's knee, gave the opponent a blow to his face in the ensuing turmoil. In the given heated circumstances, according to the Court, giving a blow to the opponent is a serious error that may lead to disciplinary sanctions, but it did not immediately and definitively make professional cooperation between the football club and the player impossible. The player then entered into a discussion with his coach and openly criticised his hierarchical superior in the presence of supporters. This was also an error by the player, according to the Court, but did not demonstrate that the authority and integrity of the coach was violated in an unacceptable way.
On 24 February 2018, the Labour Court of Appeal of Liège did not accept the urgent reasons concerning a domestic worker who, at the request of her employer, did not present herself to a doctor (appointed and paid for by the employer) for a medical examination. When the worker became unfit for work, she justified her absence by presenting several medical certificates that allowed her to leave the house. She was asked five times to present herself to the employer's control doctor, 150km from her place of residence. The employer sent a warning each time the employee did not attend. The employee justified her absence by means of various certificates from her attending doctor, who stated that her state of health did not allow her to move on the days of the summonings. Subsequently, the employee was dismissed for urgent reasons. It was established that the medical certificates did not determine whether the employee was allowed to move in view of a medical examination. Consequently, the employer could assume that the employee could indeed go to the control doctor. However, the long distance could justify the impossibility of the journey, which was also explicitly certified by the attending doctor. The employee did not have to prove any force majeure. According to the Court, the employer could therefore not correctly establish that the employee refused to submit to a medical examination, since the control doctor was not sent to her place of residence. In addition, the Court qualified the dismissal as manifestly unreasonable because, on the one hand, the urgent reason was not retained, and, on the other hand, the other professional errors invoked by the employer were not proven.
The Labour Court of Liège reiterated the principles of competition by employees in a judgment delivered on 14 May 2018, stating that it is permitted only to prepare to carry out a future competitive activity. An employee-salesman was dismissed with urgent cause. According to the employer, this was supported by Facebook conversations that the employee had in the workplace during his working hours with a customer of the shop and a colleague. The employee was said to have reported the shop's poor financial health and its imminent closure, among other things. The employer therefore accused the employee of having seriously damaged the interests of the company and its reputation. The employer also reported that he was informed that the employee had contacted direct suppliers to prepare a competitive professional project. The Labour Court considered that the statements included in private conversations with acquaintances cannot be qualified as defamatory. Moreover, no mention was made of any ill-effects these statements had on trading activity. With regard to unfair competition, the Court reiterated that if an employee who is still in service carries out an activity that competes with that of his employer, it would be considered unfair. However, simply preparing to carry out a future competitive activity is permitted (e.g., the creation of a company, the acquisition of a participation in a competing company, gathering certain information or conducting certain negotiations or transactions), without actually commencing the activity. In this particular case, it was established that the employee was in the initial phases of a shop opening project. According to the Court, it was therefore quite normal for the employee to obtain information, even from a supplier of which his employer is a customer. According to the Court, the fact that a shop opening project is being prepared (in this case another activity, even if certain products are identical, and in another place) cannot be regarded as an act of (unfair) competition. A fortiori, this cannot be grave misconduct.ii Reasons for dismissal
In a judgment of 8 October 2018, the Labour Court of Liège sentenced an employer who had not duly substantiated a dismissal in a letter sent in response to an employee's demand for a cause of action relating to a civil fine under Article 7 of Collective Bargaining Agreement (CBA) No. 109 (on the reasons for dismissals). As the dismissal form merely stated the reason for dismissal as 'Economic reasons. No longer enough revenue to pay wages', the employee asked to know the reasons within two months of the termination (in conformity with CBA No. 109). However, the letter with which the employer answered did not give the reasons, but stated that the employer was surprised at the question, since the employee knew the reasons for his dismissal. Reference was made to the fact that, at the time of termination, the manager 'explained very specifically the reasons which led her to do so'. She also pointed out that she tried to call the person concerned and even left a message asking the employee to call back, but to no avail. However, CBA No. 109 contains an obligation for an employer to send a registered letter within two months of termination. The employer must then communicate the specific (concrete) reasons that led to the dismissal within the same period. The sanction for non-compliance with this obligation is a fine equal to two weeks' salary. As the employer had refused to give any concrete reasons, and the reasons that had been given were vague, she had not complied with her obligations.iii Discrimination based on disability
In February 2018, the Labour Court of Appeal of Brussels convicted an employer on the basis of discrimination on the ground of disability, because he had made no serious efforts to reintegrate an employee who had been absent from work for a long period because of cancer. After her initial recovery, the employee, who was a saleswoman in a store, had asked the employer to discuss the possibilities for a progressive reinstatement. The employer refused and terminated her contract, claiming a 'lack of suitable work for this worker'. The employer also referred to the recruitment of a new saleswoman, the expansion of the range of tasks, the webshop, the new products and cash register programmes for which additional training was required. The Labour Court of Appeal qualified the employee's situation as a disability, as her ongoing recovery would not allow her to cope with a full-time occupation for at least another year. The Court also stated that the dismissal was discriminatory because reasonable adjustments to her disability were possible and would not constitute an unreasonable burden for the employer. In doing so, the Court took the following elements into consideration:
- The employer has 14 retail outlets and did not demonstrate that adapted work was not possible in another location.
- Changes in the functioning of the company (webshop, cash register system, etc.) are common and may not constitute a threshold for re-entry.
- Additional training could have solved this problem.
- The profitability of the company in 2013 and 2014 showed that there was no economic need for dismissal and that the adjustments (in particular an adjusted work schedule and training) did not constitute an unreasonable burden.
In a case of 25 June 2018, the Labour Court of Antwerp qualified a dismissal for urgent cause of an employee suffering from an autism spectrum disorder as discriminatory. The employer gave reasons for the dismissal on the grounds of refusal to work and insubordination, refusal to comply with lawful instructions and orders, and disturbance of the working environment. The employer also argued that he had not been sufficiently informed about the employee's medical condition and he considered that the employee had not demonstrated that his condition prevented him from monitoring his behaviour. However, the employer was aware of his disability from the moment he joined the company. The recruitment took place with the support of an organisation that offers job coaching to people with a disability. For three years, there were no serious problems in the employment relationship. However, problems started to arise in 2016 (mainly because the employee refused to carry out his tasks) that led to the dismissal for urgent reasons.
The facts invoked as grounds for urgent dismissal must be regarded as an error attributable to the employee. However, the special state of mind of the dismissed party may result in the fact that the actions attributed cannot be attributed to this party and therefore cannot be regarded as a shortcoming, which can also result in a reprehensible attitude or omission being regarded as insufficiently serious. As the severity of the employee's condition had been established by a 2010 judgment and by a psychiatric report in 2015, the Labour Court concluded in this case that the facts that may be considered as an error could not be attributed as a serious shortcoming, and that the employee's attitude was a direct consequence of his disability.iv Discrimination based on state of health
In a judgment of 24 May 2018, the Labour Court of Appeal of Brussels dismissed a discrimination claim based on health status. A worker was dismissed because he was frequently absent and did not achieve the required productivity rate. He believed he had been dismissed because of his illness and that he was therefore discriminated against. Any form of discrimination based on the protected criteria, including the current or future state of health of the worker, is prohibited. The employee claimed that his absences and insufficient productivity were only a problem when the head of his department sent an email to his manager regarding his state of health. According to the Court, this email (and other emails attached to it) did not mention the diagnosis or the nature of the condition from which he suffered. The reproaches regarding the productivity level had been made long before and had no connection whatsoever with the disputed email. The employee was dismissed after numerous absences caused by illness and the consequent disorganisation of the service, as well as because his productivity did not meet the standards set by his superiors. It was therefore not established that there was a set of facts that could give rise to a presumption of discrimination based on any of the protected criteria, including the present or future state of health.v Discrimination based on religion
The Labour Court of Brussels applied (for the first time in Belgium) the case law of the Court of Justice of the European Union (CJEU) (Achbita, C-157/15 and Bougnaoui, C-188/15, both of 14 March 2017) in a case concerning the dismissal of an employee for wearing a headscarf. Because of a policy of neutrality towards its clients, an employer had dismissed an employee for an 'urgent reason', because the woman had repeatedly confirmed her refusal to work without her headscarf. The Labour Court's investigation concerned both the discrimination, the serious reason and the manifestly unreasonable reason. Although there was no prohibition on headscarves in the individual employment contract or in the company's work rules, the Court did not conclude that the dismissal constituted discrimination on the basis of the employee's religion. With regard to direct discrimination, the Court, referring to the CJEU judgments of 14 March 2017, considered that the person concerned was not dismissed because of her religious convictions, but because of her refusal to comply with a dress code imposed by her employer on all her staff. There was no indirect discrimination either – here, the Court referred to the same CJEU case law and repeated the principles that the CJEU had explained in those decisions. The Labour Court concluded that a consistent and systematic prohibition – applicable to all employees – from wearing visible, ideological signs was an appropriate means of achieving the legitimate aim represented, i.e., the company's policy of neutrality.
There was therefore no entitlement to compensation under the anti-discrimination legislation. However, the Court also considered that the urgent cause of the dismissal was unjustified and emphasised that, in view of the controversies involved and the complexity of the matter, the person concerned could legitimately have erred regarding the extent of her rights. Although the urgent cause was rejected, the dismissal was not manifestly unreasonable, since it was based on the conduct of the person concerned. According to the Court, a reasonable employer could have acted in the same way in the same context.vi Working time
The Labour Court of Appeal of Antwerp referred to the CJEU Tyco case in a judgment of 17 April 2018, to clarify that for mobile workers without a fixed workplace, the travel time between their home and the first place of work (first customer), and the travel time between the last place of work and their home, constituted working time. The case concerned workers in a mobile cleaning service team.vii Bonus
The Labour Court of Appeal of Brussels ruled on 30 March 2018 on the demand of a dismissed employee for the pro rata payment of his bonus. The Court confirmed, in line with established case law, that a bonus is obtained at the moment the work is performed and is therefore, in principle, severable. Nevertheless, the principle of divisibility can be waived in a contract. In this case, as the employment contract included the condition that the employee had to be employed at the time of payment of the variable remuneration, the employer was not obliged to pay (a part of) the bonus.
Outlook and conclusions
Since the introduction of CBA No. 109, which gives dismissed employees the right to request a cause of action from the employer giving the reasons for dismissal, more and more dismissal claims by employees include arguments concerning a manifestly unreasonable dismissal. However, case law also illustrates that the Belgian labour courts are cautious about granting this qualification and it is difficult – although not impossible – to prove the existence of the manifestly unreasonable nature of a dismissal. Nevertheless, the importance of CBA No. 109 continues to grow.
As mentioned last year, there is a tendency for employees to rely on discrimination legislation to prevail in court. Discrimination claims relating to disability and health status are particularly important as they play a part in the health and safety obligations of employers. The reasonings behind decisions made by employers (e.g., a dismissal) are not always accepted by the courts. Nevertheless, it is clear that employers will have to be very careful if they wish to dismiss people with disabilities or health problems.
Furthermore, the 2017 CJEU case law referred to in Section IV.v with regard to employees being prohibited from wearing headscarves at work, is starting to have an effect on Belgian case law. The older national case law, which includes conditions for the provision of such a prohibition by employers, determined that even clear internal rules (in the work rules or employment policy) regarding the wearing of headscarves are set aside in favour of justification for prohibition through the principle of neutrality. It will therefore be difficult for employees who choose to wear headscarves against the will of their employer to find an effective protection against dismissal from the right not to be discriminated against on the basis of one's religion.
Although not much in evidence in 2018's case law, privacy has been an important theme. In particular, the entry into force of the General Data Protection Regulation (GDPR) has been a cause for concern among employers. The GDPR has laid down certain obligations for data processors (including employers) with regard to consent, transparency, justification for processing, data protection, inter alia. The first important cases arising from these obligations (although similar obligations already existed in national legislation) could come in 2019. Also, privacy cases regarding social media could gain importance, as social media platforms increase their impact on the professional work environment and on work relations.
Finally, Belgium has not been immune to the #MeToo movement, which has resulted in an increased awareness of inappropriate sexual behaviour in the workplace. The Belgian health and safety legislation provides for mostly internal procedures to cope with this issue (e.g., informal and formal interventions by specialised prevention advisers). However, the formal procedure brings with it protection for a victim of inappropriate sexual behaviour against dismissal related to his or her complaint, which could lead to dismissal claims being brought before the labour courts.