Multiple discrimination: cumulation of compensations?
With a judgment of 28 June 2021, the Labour Court of Antwerp followed up on a striking judgment of the labour tribunal of 29 September 2020. In the earlier judgment, an employer was for the first time ordered to pay three fixed compensations because of triple discrimination against a candidate-employee. Given the controversial nature of this judgment, the employer went to the labour court, which imposed two, rather than three compensations.
The claimant was – as mentioned in our newsflash about the judgment – a woman with a hearing impairment that had applied for the position of Research and Development Assistant at a pharmaceutical company. The labour tribunal ruled that the candidate-employee had been discriminated against based on disability both during the recruitment procedure and with regard to the decision of non-recruitment and therefore imposed two separate compensations. In addition, the decision not to hire her was also related to her pregnancy, and the Gender Act equates this with discrimination based on gender. The candidate-employee received separate compensation for this as well.
The employer appealed against the judgment in order to have the payment of the compensations and the cumulation thereof declared unfounded.
One compensation for discrimination based on disability
The labour court confirmed that there was discrimination based on disability during the recruitment procedure and with regard to the decision of non-recruitment, but contrary to the labour tribunal, only imposed one compensation.
The court pointed out the interdependence of the recruitment procedure and the decision of non-recruitment. The discrimination based on disability with regard to the decision of non-recruitment was according to the court among other things evident from the recruitment procedure. Furthermore, the court pointed out that no separate damage resulted from the discrimination during the recruitment procedure and the decision of non-recruitment. After all, the result is the non-recruitment, and one compensation is considered to compensate the material and moral damage.
Furthermore, the proportionate and reasonable nature of a compensation also has to be taken into account. The granting of two separate damages for the non-respect of one protected criterion did not seem reasonable nor proportionate to the court, due to the beforementioned interdependence and the lack of separate damage. The court also feared that granting two compensations would have a counterproductive effect. It would give employers an “incentive” to immediately reject a candidate-employee with a disability − instead of giving him or her a chance to participate in the selection procedure − which would not serve the dissuasive purpose of the compensation.
Cumulation with compensation under the Gender Act
Like the labour tribunal, the labour court also decided that there was discrimination based on gender. The labour court decided that a cumulation of the compensations because of discrimination based on disability and gender was indeed possible. The court ruled that although the Antidiscrimination Act and the Gender Act are closely intertwined, they should be considered as two separate regulations each providing a fixed compensation in case of discrimination. These acts do not provide a cumulation prohibition. Since the employer violated two different discrimination acts, the compensations can be cumulated. Moreover, according to the court in this case there was separate damage. Although the end-result of the violation of the two protected criteria is the same (the non-recruitment), morally speaking there is a different form of damage to the candidate-employee’s integrity.
Action point
This remarkable judgment states that the violation of several protected criteria may give rise to multiple compensations. It is therefore important for employers to make well-considered, well-founded decisions for example in the context of recruitment procedures and to document them. The Antidiscrimination Act and Gender Act provide that the employer has to prove that there is no discrimination when the alleged victim provides facts that raise such a presumption.