Brussels labour court again links poor welfare policy to discrimination

In a landmark judgment of 4 September 2023 (Arbh. Brussels 4 September 2023, 2022/AB/110, Soc.Kron. 2023, afl. 9, 513), the Brussels Labour Court again applied the principle that a defective welfare policy is tantamount to "discrimination" in certain cases.

This judgment once again shows that employers have an interest in being careful with welfare obligations at work.

Where certain welfare obligations are specifically protective of a well-defined staff group protected by discrimination law (e.g. pregnant women, persons with disabilities, older workers,...), a court may find an employer who has failed to comply with those obligations guilty of discrimination against that specific staff group.

In such a case, the employer may be required under the discrimination laws to amend the policy, and individual staff members may also claim the compensation provided by law (6 months' pay) in that case.

The facts of the judgment

A woman was working under an internship contract for a non-profit organisation based in Brussels conducting research in the field of human rights. The woman was initially supposed to do an internship for 3 months, with the prospect of a permanent contract afterwards.

When the female intern was working late one evening, her boss called her into his office, pulled her onto his lap, groped her and tried to kiss her.

The next day, the intern complained about this to the board of directors of the non-profit association. The non-profit organisation then allegedly launched an internal investigation, which was, however, not conducted seriously at all and was actually a cover-up. It was clear that the non-profit organisation was actually protecting the accused manager. Subsequently, the non-profit organisation informed that the woman, moreover, was not given a new contract at the end of her internship term. Even more, both the non-profit organisation and the manager both filed criminal complaints against the young woman on charges of "defamation" and for allegedly damaging the reputation of the organisation.

However, on the last day of the internship, the woman also submitted, on the advice of the Institute for Gender Equality - which she had contacted in the meantime - a request for formal psychosocial intervention for sexual harassment in the workplace, to the prevention adviser of the external prevention and protection service. This obliged the non-profit organisation to accept that this external prevention advisor conducted an objective investigation into the situation within the organisation.

The external prevention adviser then reported in her report that there had been three more incidents of sexually transgressive behaviour with the same supervisor in the past two years, and concluded that the non-profit association's board of directors had failed to prevent cases of sexual harassment. Furthermore, the external prevention adviser also concluded that the non-profit organisation had not properly followed up on the various incidents and had not properly taken care of the victims.

Labour court’s ruling

After obtaining a copy of this report from the external prevention advisor, the Institute initiated legal proceedings against the non-profit organisation on the grounds of violation of the Gender Act.

The labour court followed the Institute in its reasoning, condemning the non-profit organisation for "indirect discrimination" against women, and this for the lack of prevention and protection measures against sexual harassment in the workplace.

Indeed, the labour court found that the non-profit organisation had not taken the measures required under the Welfare Act of 4 August 1996 to protect its employees from the risk of sexual harassment, and had not taken adequate measures in response to the most recent complaint due to the trainee.

Poor welfare and prevention policies on sexual harassment can, in principle, affect both men and women. However, the labour court found that the lack of policies against sexually harassing behaviour at work mainly disadvantages women. So-called "elementary statistical material" tutored by the Institute revealed, according to the labour court, that in general, more than 90% of reported cases of sexual harassment at work affect specific female employees.

On these grounds, the labour court found that the non-profit organisation was guilty of indirect discrimination against female employees.

The non-profit organisation was required by the labour court, under penalty payments, to adjust its policy. Specifically, within a time limit set by the Labour Court, the non-profit association must implement a number of internal measures to help curb sexual harassment in its workplace, as well as measures to ensure that employees who fall victim to such harassment are properly taken care of.

Implications of this court ruling

All employers are obliged to carry out a risk assessment on well-being at work, and to implement the measures resulting from it.

Until recently, it was assumed that an employer who failed to implement the welfare policy correctly only ran the risk of being prosecuted in that regard by the labour auditorate, following an inspection. In other words, the so-called "chance of being caught" was rather low.

Because courts are increasingly frequently seeing a reason to equate a failing welfare policy with discrimination against a well-defined staff group, employers risk being sued more frequently, with significant consequences for the employer afterwards.

Any individual employee who is disadvantaged by the defective welfare policy and who can relate this defective policy to a protected discrimination criterion (e.g. gender, age, disability, etc.) can go to court. Such person may also seek the assistance of the Institute for Gender Equality or Unia.

Thus, if the court establishes a link with discrimination, this implies a considerable expansion of the group of persons who can take action against any defects in welfare policy.

Moreover, the compensation in that case is fixed: in fact, any person who was a victim of discrimination is automatically entitled to the lump-sum compensation laid down by law (6 months' wages).

Incidentally, the Institute or Unia can also sue a situation in the courts on their own initiative, without representing or assisting a specific victim, ostensibly to "strike down" a discriminatory policy in general. For example, in the specific case described above, the labour court imposed four injunctions on the non-profit organisation under a penalty payment. In doing so, the non-profit organisation was required to take a number of measures to put an end to the discriminatory practice within the company.

Although the facts that gave rise to the aforementioned judgment were exceptionally unreasonable, the Labour Court's ruling is no longer exceptional. There is a trend in case law. There have been similar rulings recently.

It is therefore important for organisations to always rigorously monitor the correct implementation of the compulsory risk analysis on well-being at work and the correct observance of the proposed measures resulting from it.

Contact Jurgen Goyvaerts or Hanne Gielens for more info.