Witnesses of discrimination also protected against dismissal - Broad interpretation of the notion of “witness”
Workers who support or defend a person or colleague who has been discriminated against must be protected from reprisals by the employer. This decision was handed down by the European Court of Justice in a judgment of 20 June 2019 in a Belgian case concerning discrimination on the grounds of pregnancy.
A store manager of a chain of stores felt that a pregnant woman was the right person to fill a vacant sales position. However, the Director of Human Resources refused to hire the pregnant woman because of her pregnancy. The store manager defended the applicant and decided to inform her in writing of the reason why she had not been hired.
The pregnant woman then filed a complaint with the Institute for Gender Equality. Shortly afterwards, the store manager who had defended her was fired. The Institute, the pregnant woman and the dismissed store manager went together to the Antwerp Labour Court. The Court found that the applicant was indeed the victim of direct discrimination on the ground of sex and awarded her lump sum compensation equal to six months’ remuneration.
As regards the store manager, the labour court should have established that he was not protected under Belgian law. Under the current gender law, only “official” witnesses who have made a formal statement in the context of an investigation of a complaint of discrimination, or who appear in court, are protected against reprisals by the employer. In the present case, however, the store manager had done nothing more than inform the pregnant applicant of the reason for the refusal of her application.
The Labour Court then asked the European Court of Justice whether the Belgian system offered sufficient protection since, under a European directive, it could not be limited to official witnesses, but should also extend to those who defend or support the person who filed a complaint of discrimination.
The Court held that the current Belgian regime did not provide sufficient protection for witnesses of discrimination. The conditions for being recognised as a witness in a discrimination case and for claiming damages in the event of disadvantage due to witness status are, according to the Court, too narrow.
According to the Court, the effectiveness of protection against discrimination can only be guaranteed if workers who have not testified officially but who assist a protected person in another (informal) way also enjoy adequate protection as a witness. Otherwise, workers are less likely to defend protected persons and cases of discrimination – also on grounds other than sex – are less likely to be exposed and resolved.
Action point
It is crucial for the employer not only to have a valid reason for dismissal when there is a risk of discrimination, but also to be vigilant in case of measures taken against workers who support, in any way, their protected colleagues.