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AGE DISCRIMINATION INTERNATIONALLY

BELGIUM

 

Claeys & Engels

 

Claeys & Engels

 

www.claeysengels.be

 

 

Overview 

Belgian law includes a prohibition on age discrimination contained in the Anti-Discrimination Act of 10 May 2007. This Act implements EU Directive 2000/78 (the Framework Directive).

Direct age discrimination occurs when a direct difference in treatment based on age cannot be justified. A direct difference in treatment is a situation in which a person is, was or could be treated in a less favourable manner than another person in a comparable situation based on his/her age.

Indirect age discrimination occurs where an apparently neutral provision, criterion or practice has a disparate impact on a younger or older person compared to another person, unless the provision, criterion or practice can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.

The Anti-Discrimination Act specifies that with regard to employment issues, direct and indirect age discrimination is justified if a characteristic constitutes an essential and determining professional requirement, due to the nature of the professional activity or the context in which it is performed, provided that the objective is legitimate and the requirement is proportionate to that objective.

Furthermore, with regard to employment issues and supplementary social security schemes, direct differences of treatment on grounds of age shall not constitute discrimination if they are objectively and reasonably justified by a legitimate aim. A “legitimate aim” includes legitimate objectives of employment policy, labour market or all other comparable legitimate objectives, but the means used to achieve that aim must be  appropriate and necessary.

With regard to supplementary social security schemes, various differences in treatment based on age are excluded from the definition of discrimination (such as the fixing of different ages for admission and entitlement and so on).

Affirmative action (also known as “positive discrimination”) based on age is allowed and can justify direct and indirect age discrimination.

Finally, direct and indirect differences based on age cannot be considered to be discrimination if the difference in treatment is imposed by law.

Harassment is considered as a form of discrimination.

An instruction to discriminate is also deemed to be discrimination itself.

Who’s covered?

Age discrimination law applies to all persons, in both the public and private sectors, including public bodies, in relation to:

  •  the supply of goods and services which are available to the public;
  • social protection including social security and health care;
  • social benefits;
  • supplementary social security schemes;
  • employment issues;
  • being named in an official document or report;
  • the membership or involvement in an employer's or employee's organisation or any organisation of which the members practice a certain profession, including the benefits these organisations offer; and,
  • the access to and the participation in or any other exercise of an economic, social, cultural or political activity accessible to the public.

The following is a non-exhaustive list of employment issues that the Anti-Discrimination Act applies to:

  • the conditions for access to employment, such as work offers or adverts for job vacancies and promotion opportunities, the determination and use of selection criteria and selection channels, and the assessment of partners in companies of partnerships;
  • the provisions and practices with regard to employment conditions and pay; and,
  • the provisions and practices with regard to the termination of the employment contract.

What enforcement/remedies exist?

Contractual provisions which are contrary to the principle of equal treatment are null and void. 

A victim of discrimination can obtain an injunction from the President of the to stop discriminatory acts, e.g. discriminatory employment conditions.  The law provides for summary proceedings.  However, an injunction to stop a discriminatory dismissal is not possible, since no party can be forced to stay in an employment agreement.  The claim for such an injunction when the dismissal already took place is therefore without cause.

Certain infringements constitute criminal offences and are subject to imprisonment and/or penalty payments.

The claimant can bring civil liability actions on the basis of these infringements.  The victim of discrimination can claim moral and material damages.  In principle he/she would have to prove the existence and the amount of his/her loss. 

The victim can also choose to claim fixed damages of:

  • six months of salary as moral and material damages, to be reduced to three months salary if the employer proves that the less favourable treatment would also have occurred based on non discriminatory grounds; or,
  •  €650 for moral damages only.  This amount will be increased to €1300 unless the employer proves that the less favourable treatment of the victim would also have occurred based on non discriminatory grounds or because of the seriousness of the moral damages.

How common are claims?

In general, discrimination claims are not common in Belgium.

The Belgian Centre for Equal Opportunities and Opposition to Racism receives an increasing number of complaints. In 2011, 25% of these complaints were related to work. Most of these complaints were on discrimination based on 1) race, 2) disability and 3) age.

Only a limited number of claims have been brought before a court. Most of these cases deal with discrimination based on age or on health conditions.

Furthermore, where an employee who is discriminated against because he/she lacks a beneficial provision, which for example a particular age group (such as young employees or those over 60) already benefits from, the contract of the employee who was discriminated against will be deemed to include that provision. This means that all employees of a company might benefit from a provision that was meant solely for younger/older employees. This applies to all kinds of contracts (individual and collective) as well as policies and other documents that form part of the employment relationship.

Employees who are discriminated against will benefit from protection against dismissal. There is therefore potential for an employee to falsely claim age discrimination with the sole objective of obtaining protection against dismissal. Furthermore, fixed damages might also trigger employees to launch more claims based on age discrimination.

We also believe more harassment claims might be based on age discrimination, however the new Anti-Discrimination Act of 10 May 2007 does not apply to harassment in an employment context.  Harassment is exclusively dealt with in a specific act of 10 January 2007.  This legislation is embedded in the general legislation on the well-being of employees.

Retirement ages

The Belgian legislator has not set an age or ages above which employers can dismiss employees without the need to justify the dismissal in view of the discrimination prohibition. There is no mandatory retirement age as in other jurisdictions (including the UK).

According to Belgian law, any clause in a collective or individual employment contract enabling the employer to terminate the contract without notice or compensation, when the employee reaches the age of entitlement to a retirement pension, is considered to be null and void.

However, the employer can dismiss an employee (only white-collar employees) of 65 years with a notice period of six months (three months if the employee has less than five years seniority) which is far less than the normal notice period based on the Claeys formula (approximately one month per year of seniority). For staff of the civil air line companies (cockpit and cabin crew), the age is 55 and not 65.

The Constitutional Court judged in 2010 that this shorter notice period does not violate the constitutional principle of equality.  The legislator considered it appropriate for the employer to be able to give an employee who has reached the retirement age a shorter notice, since the “employment capacity of a white-collar employee can decrease quickly whereas the notice period to be complied only increases or maintains”.

For most civil servants, retirement is mandatory at the age of 65. At that age, their employment will terminate automatically and without notice. 

Interesting cases

Labour Tribunal, Brussels 2 December 2005 (A.R. 62733/03), Labour Court, Brussels 11 April 2008

A referee employed by the Royal Belgian Football Union registered a complaint against the clubs’s policy of dismissing employees at the age of 45.

He was granted moral damages of €12,500 because of the dismissal.

The facts in this case predate the Anti-Discrimination Act and the date for the implementation of EU Directive 2000/78. However, the Labour Tribunal declared that according to Belgian law, age discrimination was prohibited based on an interpretation of Belgian legislation in line with Directive 2000/78.

The Labour Tribunal accepted that a referee should have an adequate professional condition but this can be tested objectively. The use of an age limit is unnecessarily discriminatory and does not have a legitimate objective that can be reasonably and objectively justified.

In appeal, the Labour Court confirmed that the age limit of 45 years was discriminating, since there were other ways to test objectively the condition of a referee.  However, contrary to the Labour Tribunal, the Court held that the Framework Directive had no horizontal direct effect.  A dismissal based on age therefore could not be qualified as abuse of rights.

Labour Court, Brussels 11 February 2008

In April 2006, an airline company terminated all employment contracts with pilots older than 60 years. Some of the pilots filed an action before the Labour Court.

The employer argued that there was a French regulation which imposed criminal sanctions and prohibited pilots older than 60 years flying over French territory or landing in France. The court judged that there was indeed an objective and reasonable justification for the dismissal of the pilots.

Labour Court, Brussels 11 March 2008

An employee asked to be paid according to the salary scales of the joint committee 218 (competent for white collar employees in various branches). These scales are based on age - this means that salary is increased merely based on age. An employer refused to pay the salary according to the scales arguing they were null and void as they were clearly discriminatory.

The court did not accept the argument of the employer.

The employer cannot raise the discriminatory character of the salary scales of the J.C. n° 218 to oppose a regularisation of justified wages. According to the court, the nullity of discriminatory salary scales can only be invoked by the victim of discrimination. The employer is not a victim of age discrimination.

Labour Court, Ghent 22 October 2008

An employer proceeded to a collective dismissal which only affected employees of 55 years and older. In the framework of the restructuring, a collective bargaining agreement which introduced a system of bridging pension (i.e. early retirement) for employees of 55 years and older was concluded. In a bridging pension scheme, the dismissed employee has a guaranteed income and social protection until the age of 65 years (legal pension age).

Some of the dismissed employees filed action before the Labour Court of Ghent claiming they were discriminated.

The Court judged that the difference in treatment in this case had an objective and reasonable justification because of the intention of the employer to minimise the harmful effect of the collective dismissal by maximally using the system of bridging pension. The Court furthermore stated that the dismissals were the consequence of the bridging pension scheme that was agreed between trade unions and employer, and not the age of the employees.  

Labour Tribunal, Turnhout 28 June 2010

An applicant was rejected by an employer based on the argumentation that “the vacancy considered a junior position”.  According to the employer, the career, experience and probably ambition of the applicant was more suitable for a ‘senior’ position.

The applicant claimed he was discriminated based on his age.

The tribunal judged that the employer proved the contrary.  The rejection was not based on the applicant’s age, but on his professional experience, his degree and the fact that he was too qualified for the job.  Someone with less experience and another education was more suitable for the needs of the employer.

Labour Tribunal, Ghent 20 September 2010

A night guard was dismissed by the hospital where he worked for that he was not eligible for a funding measure to promote youth employment.

According to the Tribunal, the employment agreement was clearly terminated because of the age of the employee.  The distinction based on age could not be justified, since age was no genuine occupational requirement, nor was it the purpose of the funding measure to replace older employees.

The argument of the hospital that, as a public institution, it has to optimize its expenses was rejected by the Tribunal.  It stated that justifications have to serve the public interest, and not the individual interest of an employer.