The cumulation of compensation for pregnancy protection and compensation for discrimination in the case of dismissal of a pregnant and sick employee: an 'and-and-and story'

With a judgment of 4 January 2024, the Antwerp Labour Court followed up a judgment of the Labour Tribunal of 18 October 2022. In that judgment, an employer was ordered to pay compensation for maternity protection and two compensations for double discrimination based on gender and health status due to pregnancy. With the judgment, the Labour Court upheld the Labour Tribunal's judgment, thus settling, among other things, the question of whether a cumulation of such protection and compensation payments is possible for dismissals that occurred after 19 January 2023.

Principles

When an employer proceeds to dismiss a pregnant employee, the employer must be able to prove that the reasons underlying the dismissal are completely unrelated to the pregnancy. If the employer fails to prove this, the employee can claim compensation for protection of pregnancy amounting to 6 months’ gross remuneration.

The question this raises is whether the employee in this case can also argue that, in addition, there is discrimination on the basis of gender and/or health status and, if so, whether these compensations for protected status and damages can be cumulated.

Since a legislative amendment of 15 November 2022, the Law of 10 May 2007 aimed at combatting discrimination between women and men now explicitly provides that the damages that the victim can claim in case of discrimination can be cumulated with compensations for protected status paid following the termination of an employment relationship. Moreover, the law confirmed the concept of cumulative discrimination.

While protection from dismissal for a pregnant employee is intended to provide protection for damages suffered by the individual employee who is dismissed because of her pregnancy, compensation for discriminatory dismissal is intended to provide a lump-sum compensation for the intangible and material damages suffered by the employee who is a victim of discrimination.

This change in the law only came into force on 19 January 2023 and without retroactive effect. Thus, for all dismissals made before this date, the question of whether these two allowances can be cumulated remains an ongoing point of discussion.

In the present case, the Labour Court settled this question.

Court’s decision

In its judgment, the Antwerp Labour Tribunal ruled that the employer did not prove that the dismissal was unrelated to pregnancy/maternity and also held that there was discrimination based on gender and health status. The Labour Tribunal awarded the employee both compensation for protection of pregnancy in the amount of 6 months' gross remuneration and damages for multiple discrimination in the amount of 12 months’ gross remuneration.

The employer appealed against this decision, and the Labour Court in Antwerp finally cut the knot on 4 January 2024.

More specifically, the Labour Court ruled that the employer did not prove that the employee’s dismissal was entirely foreign to her pregnancy/maternity and held that the dismissal was at least also partly motivated by her physical condition as a result of childbirth so that the protection allowance was due.

The employer’s argument showing that avoiding the guaranteed pay was a decisive element in proceeding to dismiss the employee is considered by the Court as a reason directly linked to the childbirth. It is irrelevant here that the wage cost was unexpected because the maternity rest was originally planned differently. The court states that it is peculiar to complications after childbirth (in this case, postnatal depression) that they are not predictable in advance. A reason for dismissal that amounts, at least in part, to the employer’s desire to avoid the cost of guaranteed pay is a breach of maternity protection. It is therefore immaterial that the employer in this case also sought to invoke other grounds for dismissal.  The Court stated that without the employee’s illness following maternity leave and childbirth, there was no need for reorganisation in the employer’s HR team as these were always resolved by using temporary unemployment.

The Labour Court also confirmed that there was also direct discrimination based on gender and health status so that the employee was entitled to two compensations for discrimination in addition to the compensation for  maternity protection. The employer fails to prove that it would also have dismissed the employee if she had not been unfit for work due to illness as a result of childbirth, and relies on the same arguments for this as for the indebtedness of the maternity/pregnancy protection allowance.

Moreover, the Labour Court decided that a cumulation of compensation for protected status due to pregnancy/maternity and discrimination based on gender and health status was indeed possible. The Court ruled that although the Anti-Discrimination Act and the Gender Act are closely intertwined, they should be considered as two separate laws, each providing for lump-sum allowances in cases of discrimination. These laws do not provide for a cumulative prohibition. The same applies to the Labour Act. Since the employer violated two different discrimination laws and the Labour Act, the three compensations can be cumulated. Moreover, according to the court, there were also distinct damages in this case. However, the employer did not raise any defence against the cumulation of fees.

Consequently, the Court accepted the cumulation and ordered the employer to pay lump-sum compensation of six months’ gross remuneration for violation of maternity protection, lump-sum compensation of six months’ gross remuneration for sex discrimination, on the one hand, and a lump-sum compensation of six months’ gross remuneration for discrimination based on health status, on the other.

Key message

As soon as the dismissal of a pregnant employee or an employee who has given birth is at least partly based on her physical condition, there is a violation of maternity protection.

Employers must ensure that the motive for dismissing a pregnant or giving birth employee is legally valid and that the motive is also properly documented.