- 12 Mar 2018
By a judgment of 20 February 2018, the Brussels Labour Court has decided that the consequences of cancer can constitute disability. This has important implications for employers, insofar as the grounds of justification of a difference of treatment are more restrictive when dealing with disability.
The worker, employed as a full-time salesperson, had reported to her employer that she had been diagnosed with a specific form of cancer (lymphoma). A long incapacity for work followed. Almost two years later, while she was getting better, her family doctor as well as the medical officer of the health insurance both considered that a progressive return to work was feasible. The employee had then asked for her working time to be adjusted. However, she was dismissed less than two weeks later.
The employee challenged her dismissal, invoking discrimination on the ground of the lack of implementation of reasonable adjustments. The non-discrimination Act considers that the refusal to implement such adjustments in favour of a disabled person constitutes discrimination. The Act specifies that the adjustments are appropriate measures allowing a disabled person to access, take part and progress in the labour market, except if those measures create a disproportionate burden for the person who has to implement them.
The Brussels Labour Court has considered, in view of the long-standing absence of the employee and of the limitative consequences that the cancer had on the execution of the work, that it was indeed a disability, within the meaning of the broad definition given by the European Court of Justice.
Based on the employer’s obligations in terms of surveillance of the employee’s health, the Court considered that the employee could expect reasonable adjustments, for instance an adjusted workload and training to cope with the negative consequences of the disability. The employer, who replaced the employee, argued that the work methods had changed, and that he did not have enough work for more than one person. However, the Court did not follow this argumentation.
Thus, the Court has considered that the dismissal constituted discrimination and ordered the employer to pay compensation equal to six months’ remuneration.
> Action point
When an employee asks for adjusted work conditions after a long-term incapacity for work due to cancer, you need to be careful when such request is not granted, and to be able to prove that the reasonable adjustments requested by the employee would result in a disproportionate burden on the employer.