Absence due to infertility treatment or medically assisted reproduction - Partial assimilation to maternity protection
On 18 April 2024, a legislative amendment was published in the Belgian State Gazette that introduces a protection against dismissal and a prohibition of discrimination in the event of absence due to infertility treatment or a programme of medically assisted reproduction. This new protection is similar to maternity protection: from now on, employers who dismiss or take negative actions against an employee who undergoes an infertility treatment or a programme of medically assisted reproduction can be ordered to pay damages of six months’ gross salary if they cannot prove that there were other reasons for doing so.
On 18 April 2024, a legislative amendment was published in the Belgian State Gazette that introduces protection against dismissal and a prohibition of discrimination in case of absence due to an infertility treatment or a programme of medically assisted reproduction.
The legislative amendment introduces a prohibition of dismissal in the Labour Act (Act of 16 March 1971) with respect to employees for reasons related to their absence due to an infertility treatment or a programme of medically assisted reproduction, under penalty of a lump-sum protection indemnity of six months’ gross salary. This protection against dismissal applies from the moment the employer is informed of this absence through a medical certificate until the expiration of a term of two months. In addition, the legislative amendment adds “absence due to infertility treatment or a programme of medically assisted reproduction” as a prohibited ground of discrimination to the Gender Act (Act of 10 May 2007 to combat discrimination between women and men), which also allows negative actions on this basis to result in compensation of six months’ gross salary.
This new protection is similar to maternity protection. As with maternity protection, an employer has the possibility to prove that a dismissal was given for reasons unrelated to an infertility treatment or a programme of medically assisted reproduction. However, if the employer fails to do so, the protection indemnity will still be due. In addition, in analogy with maternity protection, the protection indemnity will be cumulative with one or more indemnities based on discrimination legislation. For example, it is possible that an employer will be ordered to pay a lump-sum indemnity of six months’ gross wages for violation of the dismissal protection in the event of absence due to infertility treatment or a programme of medically assisted reproduction, a lump-sum indemnity of six months’ gross wages for discrimination based on sex, and a lump-sum indemnity of six months’ gross wages for discrimination based on another ground, such as health status (see previous Newsflash on maternity protection).
However, there are also differences with maternity protection. While maternity protection applies from the moment the employer is informed of the pregnancy until one month after the end of the post-natal rest period, this new protection against dismissal applies from the moment the employer is informed through a medical certificate until the expiration of a term of two months. Contrary to maternity protection, the preparation of the dismissal during the period of protection is not further explicitly assimilated with an effective dismissal, and no sanction is provided for the non-renewal of a fixed-term employment contract. However, this could still be considered as a form of discrimination.
Point of attention
Due to the explicit recognition by the Belgian legislator of “absence due to infertility treatment or a programme for medically assisted reproduction” as an absence protected against dismissal and a prohibited ground for discrimination, employers should take this into account when contemplating a dismissal, especially in view of the possibility to cumulate the protection and damages indemnities (see the previous Newsflash regarding multiple discrimination).