This summary of age discrimination law in Belgium has been prepared by Claeys & Engels, the Ius Laboris member for Belgium: www.claeysengels.be.
Overview
Belgian law prohibits age discrimination as per the Anti-Discrimination Act of 10 May 2007. This Act implements the EU Directive 2000/78 (the Framework Directive). Therefore, the case law of the European Court of Justice is an important source for the interpretation of national non-discrimination law.
Direct and indirect age discrimination
Direct age discrimination occurs in a situation where 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.
Harassment is considered as a form of discrimination, which includes, for example, offensive or derogatory remarks about a person’s age.
An instruction to discriminate against another is also deemed to be discrimination.
Exceptions
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 due to 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 entitlement).
Affirmative action (also known as “positive discrimination actions”) based on age is may be allowed and can could justify direct and indirect age discrimination, subject to strict statutory conditions.
Finally, direct and indirect differences based on age cannot be considered to be discrimination if the difference in treatment is imposed by law.
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 an employment contract.
What enforcement/remedies exist?
Sanction of nullity
Contractual provisions which are contrary to the principle of equal treatment are null and void.
Prohibitory injunction
A victim of discrimination can obtain an injunction to stop discriminatory acts, e.g. discriminatory employment conditions. The law provides for summary proceedings. However, an injunction to turn back a discriminatory dismissal is not possible, since a party cannot be forced to stay in an employment agreement. A judge can also impose positive measures and publish the injunction.
Criminal sanctions
In theory, certain infringements of labour laws constitute criminal offences and are subject to imprisonment and/or penalty payments. In practice, however, criminal sanctions are hardly ever applied in employment-related discrimination cases.
Compensation for damages
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, the victim of discrimination in employment would be entitled to:
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 €1.950650 for moral damages only. This amount will be increased to €3.900 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. As of 1 January 2024, these amounts are adjusted each year to inflation.
Alternatively, the victim could also aim to prove the existence and the amount of his/her actual loss.
Levelling up
Where an employee who has been discriminated against because he/she does not receive benefits which a particular age group (such as young employees or those over 60) already benefits from, the terms and conditions of employment of the employee 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.
Protection against dismissal
Employees who are discriminated against will benefit from protection against dismissal.
If a formal discrimination complaint is filed by or on behalf of a person or if an alleged discrimination is informally raised, the employer should not take a ‘disadvantageous measure’ (i.e. dismissal, unilateral modification of working conditions or a damaging measure after dismissal) against:
· the person or any witness who gives information in connection with the complaint;
· employees who report the alleged violation in favour of the person concerned;
· employees who have filed a complaint in favour of the person concerned by the alleged violation;
· employees who give advice or provide help or assistance to that person;
· employees who invoke the issue of the alleged violation;
· the employee for whose benefit the above acts are performed.
This is unless the measure is for reasons that are unrelated to the discrimination report, complaint, legal action or other protected action. The employer bears the burden of proof of demonstrating there are alternative reasons. This protection lasts for 12 months from the moment when the employer became aware of the report, complaint, legal action or other protected action or could reasonably have been aware of it, or, in the event of litigation, three months after the date on which the judgment can no longer be appealed. If this protection is breached, the employee is entitled to a protection indemnity equal to six months’ salary. Alternatively, the employee could also aim to prove the existence and the amount of his/her actual loss.
The protection, however, does not apply in the event of abuse of the procedures, and such abuse may give rise to the payment of compensation.
How common are claims?
In general, discrimination claims are not common in Belgium.
Unia, the independent public institution that combats discrimination and promotes equal opportunities, reports that the number of employment discrimination complaints has increased over the past few years, changing from 85 charges related to age discrimination in 2020 to 66 in 2021 and 89 in 2022.
In 2022, 532 charges were related to work. Most of the complaints were on discrimination based on race (30%), disability (29,12%) and health (20%).
Only a limited number of claims have been brought before a court.
We also believe more harassment claims might be based on age discrimination.
Retirement ages
The Belgian legislator has not set an age which employers can dismiss employees without the need to justify the dismissal in view of the discrimination prohibition. There is no mandatory retirement age.
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.
Belgian law states that the employer can dismiss an employee of 65 years with a notice period of maximum 26 weeks which is in most cases far less than the legal notice period which is based on length of service.
The Constitutional Court held in 2010 that a shorter notice period in the event of retirement 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, however, 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 predated 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.
On appeal, the Labour Court confirmed that the age limit of 45 years was discriminatory, 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 could not qualify 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. 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 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, 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 the bridging pension scheme, the dismissed employee would have 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 against.
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 using the system of bridging pension. The Court also stated that the dismissals were the consequence of the bridging pension scheme that was agreed between trade unions and employer, and not of the age of the employees.
Labour Tribunal, Turnhout 28 June 2010
An applicant was rejected by an employer based on the argument that “the vacancy was 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 found that the rejection was not based on the applicant’s age, but on his professional experience, his degree and the fact that he was over-qualified for the job.
Labour Tribunal, Ghent 20 September 2010
A night guard was dismissed by the hospital where he worked because 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 not a genuine occupational requirement, nor was it the purpose of the funding measure to replace older employees.
The argument of the hospital was that, as a public institution, it had to optimise 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.
Labour Court Brussels, 26 July 2013
The dismissal of a doctor (independent worker) based on his age (of 75), constituted discrimination as the hospital could not justify the dismissal based on an essential and determining professional requirement or a legitimate aim, also if the policy of the hospital provided for a dissolution of the contract upon the reaching of the age of 75.
Labour Tribunal Brussels, 5 September 2014
The type of aircraft that had been used by a pilot to carry out his flights was replaced; the intention of the employer was to replace all aircrafts of the airline company. The pilot was on a list of people to receive training during a transnational period, but finally he was rejected for the training because of his age.
The labour tribunal confirmed that there was indeed discrimination on grounds of the employee’s age. After the tribunal’s decision, the employee was accepted for the training by the employer.
Labour Tribunal Ghent, 2 May 2016
An applicant for an independent sales representative position was rejected by the employer based on the argument that he was too old for the job. According to the application response letter “the applicant’s profile perfectly matched the requirements, but the applicant was not accepted for the function because of his age”.
The tribunal confirmed the earlier decision of the labour court: the rejection was clearly based on the applicant’s age and the employer had to pay a compensation of EUR 25,000 to the employee.
Labour Court Liège, 11 December 2017
A 57 years old applicant was accepted by an employer for an employment contract for indefinite period. A few months before the employee’s retirement, the employer dismissed the employee.
The employee claimed he was discriminated based on his age. The employer argued that the employee’s function no longer existed.
According to the court, there was no age discrimination, as there was no clear and convincing evidence that the employer discriminated the employee on the grounds of his age. The court based his argumentation on the fact that the employer recruited the employee at age 57.
labour court brussels, 24 april 2023
A doctor worked as an anaesthetist in a hospital. The agreement with the hospital stated that all doctors had to stop working at the age of 67. The executive council could grant an exception (up to the age of 75) to this general rule, after consulting the medical board. The doctor requested that exception, but it was refused.
The hospital made three arguments for maintaining the age limit:
· The hospital needed to be able to ensure continuity of care.
· The management of the medical staff had to be able to be optimised.
· The rotation of the staff and the succession of generations had to be assured.
The doctor believed he was discriminated against on the basis of his age. A judgment dated 17 January 2020 ruled that the doctor was discriminated against. The hospital appealed against this judgment.
The labour court found that there was a presumption of discrimination. The labour court then examined the three arguments put forward by the hospital to justify the dismissal. After analysing the three arguments, the labour court concluded that there was no discrimination based on age.
Hospitals are required by law to ensure continuity of care delivery. Therefore, they must rationalise and optimise their operations. The hospital was pursuing a legitimate aim with the 67-year-old age limit. The 67-year-old age limit was objective and reasonable and also appropriate and necessary to achieve the goal.
On the one hand, the 67-year-old age limit allowed for long and stable employment of doctors. By applying a uniform age limit, all doctors were treated equally. On the other hand, this age limit allowed the hospital to manage its workforce in a predictable manner. This made it possible to ensure continuity of care, as there was no need to suddenly look for new doctors when older doctors dropped out.
The labour court also noted that the 67-year-old age limit avoided terminating doctors' contracts in a potentially humiliating way because it was found that the doctor's performance was declining. Accordingly, the Court ruled that there was no discrimination on the basis of age, as it considered that the measure was objectively and reasonably justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.