In its decision of 20 February 2018, the Labour Court of Appeal of Brussels ruled that cancer can be deemed to be a disability covered by the protection provided for in the anti-discrimination legislation.
This protection implies that the employer had an obligation to provide reasonable accommodation for the sick employee.
1. The facts
An employee, working as a salesperson in a shop, is unable to work because they have been diagnosed with cancer.
After a long absence, justified by the need for treatment of the illness, the employee asks the employer to be allowed to return to work gradually. Both the doctor who is treating the employee and the medical advisor of their mutual insurance funds (“mutuelle”) consider this return to work possible.
Without taking this request into consideration, the employer dismisses the employee with immediate effect, with a severance payment.
The employee contested their dismissal, which they considered discriminatory. In response, the company invokes various reasons to justify its decision: the hiring of a new salesperson before their request to return to work and the impossibility of employing two workers in the same position, the fact that the position had changed significantly during the absence of the employee and that it would be too difficult for them to be retrained, etc.
The employee decides to sue the company.
2. Judgement of the Labour Court of Appeal
The Court first examines whether the cancer from which the employee has suffered can constitute a “disability” within the meaning of the anti-discrimination legislation.
According to the case law of the Court of Justice of the European Union, “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”
In the present case, the Court considers that the employee's illness can be deemed to be a "disability", in particular because:
- the illness has kept the employee out of work for a long period (more than 21 months);
- this absence required the employee to undergo training in order to be able to do their job again;
- the C4 form (administrative form from the National Employment Office) mentioned, as a specific reason for unemployment, a lack of suitable work "for this employee", recognizing that there was therefore suitable work.
Secondly, the Court found that the employer had not provided reasonable accommodation to ensure the employee could return to work. According to the Court, measures such as an appropriate pace of work or further training to adjust to the consequences of the disability in no way imposed a disproportionate burden on the employer and should therefore have been provided to the employee.
The Court further notes:
- at the very least, the employer should have requested the intervention of the prevention advisor/occupational physician as part of the employee's gradual return to work;
- the employer has a total of 14 shops, which should have enabled them to give the employee suitable work;
- that, on the basis of the annual accounts published by the company, the employer has no financial difficulties.
In conclusion, the Court considers that from the facts established by the employee it may be presumed that there has been discrimination based on a disability. The employer has failed to prove otherwise. The employer should also have provided reasonable accommodation to the employee, which it failed to do. Finally, no genuine and determining occupational requirement allowed the employer to treat the employee differently from a “healthy” employee.
The Court therefore obliges the company to pay a lump-sum compensation, corresponding to six months remuneration.
This decision is unprecedented in that, for the first time, a Belgian Labour court considers that cancer can constitute a "disability".
According to Belgian case law, the absence of an intention to discriminate is not grounds for justification: mere knowledge of the disability is sufficient for the employer to be required to provide reasonable accommodation.
If such measures are not provided (in this case, a gradual return to work, with adjustments to the pace of work and appropriate training), the employer is liable to pay compensation, pursuant to the provisions of the anti-discrimination legislation.
Source : C. trav. Bruxelles, 20 février 2018, R.G. n° 2016/AB/959.
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