Changes to the protection from reprisals included in the anti-discrimination acts
17 Feb 2023
On Thursday 16 February 2023, an act was voted into law by the Chamber of Representatives, aimed at expanding who enjoys protection from adverse measures following a report, complaint or legal claim, filed to assert a violation of the anti-discrimination acts. Once the new act enters into force, individuals who actively advise, aid or assist the person who filed the complaint or on whose behalf the complaint was filed, will also benefit from this protection. In addition, the extent of this protection mechanism was redefined.
Although these new provisions are applicable both within and outside the employment relationship, we’ll limit ourselves to the most notable changes to the employment-related mechanisms in this newsletter.
Background
The current Belgian anti-discrimination acts (the Anti-Racism Act of 30 July 1981 and the Gender - and Anti-Discrimination Acts of 10 May 2007) all include a protection mechanism for the benefit of the individual who files a complaint – or on whose behalf a complaint is filed – for violation of these acts in an employment setting. These individuals are protected from reprisals by the employer, such as disciplinary measures or dismissal. This protection mechanism is equally applicable to the person who acts as a formal witness.
The European Court of Justice and European Commission have, however, deemed the protection mechanism in its current form to be inadequate in light of the obligations set out by the European Directives on this topic, inter alia due to its formalistic nature and narrow definition of ‘complaint’.
In order to remedy this shortcoming, the Belgian legislator broadened the current protection mechanism as set out below.
Please note that the existing protection mechanism that’s applicable to individuals who file a complaint or report for bullying or harassment at work of a discriminatory nature or sexual harassment at work was similarly not in line with the European Directives in this respect. The new act therefore extends the modified protection mechanism from the anti-discrimination acts to those individuals as well.
Who is protected from adverse measures?
Going forward, the protection mechanism will be applicable to an individual who files a complaint or report for violation of the non-discrimination acts in an employment context, or initiates a legal claim to this effect. It will equally apply to the person who acts as a witness, files a complaint or report on behalf of the victim of the (alleged) discrimination or actively advises, aids or assists the latter.
All existing formal requirements, both those that existed with respect to filing a complaint, report or legal claim and those that were required to enjoy protection as a witness, have been removed.
Extent of the protection mechanism
An employer cannot take any adverse action against an individual who enjoys the protection provided by the anti-discrimination acts. There’s an exception, however, which – in its current form – reads that an employer can still take such action for ‘reasons foreign to the complaint’. Following controversy in the case-law on the interpretation of this notion, the legislator has adjusted the wording of this exception, in order to guarantee the initially intended level of protection. Going forward, an employer will only be able to take adverse action for ‘reasons unrelated to filing the report, complaint, legal claim or the content thereof’. This means that the employee will not only be protected from adverse measures that are rooted in the actions they took to assert their rights under the anti-discrimination acts (filing a report, complaint or legal claim), but also from adverse measures that relate to the facts underlying these actions (the alleged discrimination itself).
Duration of the protection from adverse measures
Although the duration of the protection remains the same – 12 months –, the starting point of this 12 month period is adjusted. As of the entry into force of the new act, the protected period starts once the employer becomes aware – or could reasonably be expected to be aware – of the report, complaint or legal claim that was filed.
Sanction in case of non-compliance
If an employer takes unlawful adverse action towards an individual who’s protected based on the anti-discrimination acts, the latter will be entitled to either a lump sum indemnity equal to six months’ salary or compensation for the actual (to be proven by the individual) damages, at their choice. This principle doesn’t change. What does change, however, is the fact that the newly adopted act expressly states that this indemnity can be cumulated with the indemnity to which the individual could be entitled as a result of the act of discrimination itself, as both indemnities cover different damages.
Conclusion and take-away
As of the entry into force of the new act – on the first day of the month that follows a ten-day period after its publication in the Belgian Official Gazette – employers will have to take into account the broadened protection mechanism. Once the employer becomes aware that a report, complaint or legal claim is filed for the violation of the anti-discrimination acts, it will now be even more important to clearly identify who benefits from a protection from adverse measures and take into account the redefined extent of the protection, in order to ensure full compliance with the protection mechanism.
If you have any questions regarding the above or are confronted with a specific case in this respect that requires assistance, don’t hesitate to reach out: we’d love to hear from you.
