Prohibition of discrimination: also for cancer patients wishing to return to the work floor

1. What happened?

A female worker informed her employer on 24 November 2012 that she had received a diagnosis of cancer. The employer owns a store chain of 14 establishments in total. The performance of the employment contract of the worker is suspended during the period of treatment of the disease.

In the course of the month of December 2012 another employee has been hired by the employer for an indefinite period of time. This new worker replaces the sick employee, but this was never mentioned neither at the time of hiring nor any time thereafter.

After 21 months, the cancer patient gets the happy news that the treatment has been successful and that she can gradually resume her activities with her employer.

On 14 August 2014 she contacts her employer to discuss the terms of gradually resuming her work. On 26 August 2014 the employer terminates the employment contract with payment of the severance pay. The C4-form states as the reason for the termination “lack of adjusted work for this employee”.

As a reply to the request for some more explanations concerning this reason, the employer refers to the hiring of another employee, an increase of the workload, the webshop, new products and cashing and framework programs, requiring a solid additional training, and the financial impossibility to maintain two persons at the employ for the same job.

The woman goes to court and claims payment by her ex-employer of a compensation equivalent to six months’ remuneration on the basis of discrimination because of handicap / current or future health condition.

2. The decision

The Employment tribunal of Leuven denies her claim, but by decision of 20 February 2018 of the Third Chamber of the Brussels Employment Court of Appeals, the claim is declared founded and the former employer is held liable for payment of compensation equivalent to six months’ remuneration on the basis of discrimination because of handicap.

3. The legal framework

The law of 10 May 2007 aiming at fighting certain forms of discrimination prohibits direct and indirect discrimination, o.a on the work floor, because of age, sexual nature, civil status, birth, wealth, believe or life contemplation, political conviction, union conviction, language, current or future health condition, handicap, physical or genetic condition, social background.

Discrimination includes a.o. the refusal of the employer to make reasonable adaptations to the benefit of a person with a handicap.

A "handicap" is defined as a limitation resulting from a long lasting physical, spiritual or psychological condition, which may hinder the person concerned to participate completely, effectively and at the same level as other workers in the professional life.

"Reasonable adaptations" are adequate measures by the employer in a concrete situation allowing his employee with a handicap to be employed, unless these measures would represent an unreasonable burden for the employer.

4. The position of the Employment Court of Appeals

A distinguishing difference between a "handicap" and a "disease" is the long lasting nature of the condition, which causes the limitation. In this case the Employment Court of Appeals held that the limitations due to cancer were long lasting and that therefore, considering those circumstances, the notion of “handicap” as referred to in the anti-discrimination legislation, applies.

In addition, the Employment Court of Appeals held that the employer wrongfully failed in this case to introduce reasonable adaptations, that is, that the reasonable adaptations, which the employee would have allowed to gradually resume work, did not cause unreasonable burdens for the employer. In making this decision, the Employment Court of Appeals took into consideration a.o. the following elements:

The employer owns 14 establishments and he did not bring in evidence that appropriate work was not available in any of these establishments;

Operational changes often occur in an enterprise and can not constitute a hindrance for a gradual resumption of work; additional training is a normal fact of life in those circumstances and is the appropriate measure to quote with these evolutions in order to allow the worker to resume work;

The employer’s business was profitable in the forgoing years and, therefore, there was no economic need for a dismissal and the adaptations (working time, training, …) did not represent an unreasonable burden.

5. Some reflections

It should be pointed out that the employer at stake – to put it softly – did not turn out to be an example of a contemporary and human HR-approach: immediately and simply firing an employee, who overcame and won from a cancer disease after 21 months, after she had informed the employer that she was ready again to gradually resume work, is not an example of a human HR-policy.

The fact that the Employment Court of Appeals took into consideration that the employer owned 14 establishments is remarkable, especially considering the fact that these establishments are spread all over Flanders. This would suggest that employment in Western-Flanders of an employee who is living in the Leuven area would be a reasonable adaptation.

The fact that the Employment Court of Appeals takes into consideration the profitability of the employer’s business is remarkable as well. 

The replacement of an employee with a long lasting incapacity becomes, in the light of this decision, a delicate issue. If the replacement is hired under an employment contract for an indefinite period of time, as in the case at hand, the employer is almost obliged, as a result of this decision, to keep both employees at the employ for one single job or to opt for the firing of the replacement worker. Obviously, things can be arranged: instead of hiring the replacement with an employment contract for an indefinite period of time, he could be hired under a replacement contract or through the intermediary of a temporary agency.

The media have been focusing on the fact that cancer was qualified by the Employment Court of Appeals as a handicap. Given the fact that cancer has the reputation of being one of the most awful diseases, makes it probably understandable that the media were focusing on this aspect. However, this decision opens the same door for all other long lasting diseases.

At the moment when this case occurred, the Royal Decree of 28 October 2016 did not yet apply. This Royal Decree introduced specific procedure to promote the reintegration of long lasting sick employees on the work floor of their employer. Obviously, these procedures have now to be respected and for more explanations on these procedures, we refer to our website.

In any event, beware of the anti-discrimination legislation. That is the message!