When is there a cumulation of indemnities if a pregnant employee is dismissed?

Principles

Pregnant employees enjoy a certain degree of protection against dismissal. A pregnant employee may not be dismissed “except for reasons not relating to the physical condition resulting from the pregnancy or childbirth”. If such reasons cannot be proven, the employer is required to pay a protection indemnity equal to six months’ pay.

In addition, the legislator, in aiming to combat discrimination between women and men, prohibits any direct or indirect discrimination on the grounds of sex. It provides for the possibility for the victim of such discrimination to obtain compensation for her loss corresponding, at her choice, either to a lump sum equal to six months’ pay or to the damage actually suffered and proven.

The issue

Employees covered by the scope of protection against dismissal for pregnant employees regularly try to claim this indemnity for discrimination on the grounds of sex, in addition to the maternity protection indemnity mentioned above. The question then arises as to whether these two indemnities can be cumulated.

Caselaw

The Mons Labour Court concluded in a judgment of 15 March 2013 that there was no possibility to combine these two indemnities, since the maternity protection indemnity provides protection identical to that resulting from the anti-discrimination legislation. The Brussels Labour Court came to the same conclusion in a judgement of 3 September 2014 and the Brussels Labour Court ruled in the same vein in a judgment of 29 June 2015.

A contrario, in a judgment of 26 October 2018, the Mons Labour Court indicated that the employee could indeed be entitled to both indemnities if she had been able to prove the existence of two separate damages.

Adaptation of the anti-discrimination law

The legislator has now settled this controversy. The Law of 10 May 2007 designed to combat discrimination between women and men now explicitly states that the damages and interest that the victim may claim in the event of discrimination may be combined with the protection indemnities paid following the termination of an employment relationship, unless otherwise stipulated by or pursuant to a law.

In the absence of a provision to the contrary in legislation relating to maternity protection, compensation for discriminatory dismissal on the grounds of sex and maternity protection indenmnity may therefore be combined.

The parliamentary work on the Act of 15 November 2022 amending the Anti-Discrimination Act indicates in this respect that the purpose of anti-discrimination legislation differs from that of employment law. It should therefore be permissible to combine a lump-sum indemnity payable under anti-discrimination legislation with a protection indemnity under employment law. Whereas the protection against dismissal for a pregnant employee is intended to provide protection for the damaged suffered by the individual employee who is dismissed because of her pregnancy, the indemnity for discriminatory dismissal is intended to provide lump-sum compensation for the non-material and material damages suffered by the worker who is the victim of discrimination.

However, this only applies to dismissals occurring after 19 January 2023. This is because the Act of 15 November 2022, which amended the anti-discrimination legislation in this way, only came into force on 19 January 2023, without retroactive effect. For all dismissals notified prior to this date, the question of the cumulation of these two indemnities is therefore still there.

Brussels Labour Court ruling of 15 March 2023

The Brussels Labour Court had to rule in a recent judgment of 15 March 2023 on the question of the cumulation of two indemnities in the context of a dismissal that took place before 19 January 2023, i.e., before the entry into force of the amendment of the anti-discrimination law.

In this case, the Court accepted the combination of the two indemnities and consequently ordered the employer to pay the employee six months’ indemnity for discrimination on the basis of sex and six months’ indemnity for maternity protection. In support of this decision, the Court pointed out that the purposes of the two forms of protection were different and also went one step further by considering that the employee should not have to show how she had suffered separate damages, since she had chosen to claim the lump-sum compensation provided for in the anti-discrimination law and not the compensation for the harm she had actually suffered.

In its judgment, the Labour Court also referred to the amendment to the Anti-Discrimination Act, specifying that, while there was no question of applying it in the case in point, it saw it as enshrining the solution it had adopted in its judgment.