Home > Workplace > Belgium > 2010-12-16 - Labour Court of Brussels, n. 3772/09

2010-12-16 - Labour Court of Brussels, n. 3772/09

Workplace · Belgium · Discrimination · Employement contract

Retaliatory termination of fixed term employment contract following discrimination complaint

Key facts of the case - The plaintiff, a women of foreign/immigrant origin, is an employee working as a call operator for the defendant company (NV ING Contact Center Belgium ; ‘employer’), was employed under a fixed term employment contract since 19 September 2007. Her contract was to end 31 December 2008 and she was eager to obtain an employment for indefinite term. The employer however required she first pass the ‘ING hiring test’, which she had unsuccessfully taken in the past. The hiring procedures required passing this test, in absence of which an individual could only be hired under fixed term contracts up to a total period of two years.
In the meanwhile, two (Belgian) colleagues did obtain employment contracts for an indefinite term even though they had not passed the same test and did not even hold the requisite high-school degree, this while plaintiff held two university degrees. Plaintiff and two other colleagues, all of foreign origin, were denied such contract but nonetheless allowed to retake the test (even though that was in general only allowed every two years). One colleague, who passed the test, was subsequently hired for an indefinite term, but plaintiff was not as she did not pass the test.

After a number of talks and emails, plaintiff sent employer a registered complaint letter on 12 November 2008 arguing that she had been the victim of discrimination (noting she was denied an indefinite duration employment contract because she had failed to pass the test, while two named Belgian colleagues had obtained such contract without having ever taken the test). In her letter, plaintiff refers to the ‘anti-discrimination law of 25 February 2003’ and collective labour agreement nr. 38, and informs employer that she is sending a copy of the letter to the labour union, her attorney and the Centre for Equal Opportunities.
Employer responds on 15 December 2008 denying any discrimination, noting that the two named exceptions – which it does not want to elaborate on because of privacy reasons – do not take away from the fact that its hiring procedures stand. Employer also argues the employee is using a ploy to put employer under pressure that by sending copies to the labour union and the Centre for Equal Opportunities. The company decides to fire employee on the spot, and pay compensation for the rest of her contract period (i.e. the two weeks still left on the fixed term contract).

The Labour union responds the next day by email that this termination is invalid as it was retaliatory, and request employee’s re-integration in the company, which employer refuses as he regards the complaint an abuse of Article 15 §6 of the anti-discrimination Act of 10 May 2007 in a mere attempt to obtain the 6 month salary penalty.
In court, plaintiff request about 14.000 euros damages (6 months salary) for retaliatory termination. The Belgian Centre for Equal Opportunities and Opposition to Racism intervenes in the case and claims its own damages.

Note : The anti-racism law of 30 July 1981 (as amended) prohibits discrimination on the basis of ‘so-called race, skin color, national or ethnic descent’ in the workplace. The anti-discrimination law of 10 May 2007 covers grounds such as religion or belief, age, disability…

Main reasoning of the court - The court underlines that the ratio legis behind the protection against retaliatory termination under the anti-discrimination act is not punishing an employer who discriminates, but protecting the exercise of legal rights and remedies. In this case, the plaintiff had a clear reason for her belief (even if unfounded) that she was being discriminated against (or better: that two other colleagues were getting preferential treatment).
The conditions for this protection to apply are interpreted in a flexible manner by the Tribunal: the fact that plaintiff did not refer to the correct applicable act and did not specify the ground for discrimination does not prevent that protection from kicking in.

Comment - It must be noted that merely filing a complaint with the Centre for Equal Opportunities does not trigger the protection against retaliatory termination under the discrimination law.
The employer acted impulsively by immediately firing an employee whose contract was about to expire in two weeks time (even though the contract could have been expected to be extended based on earlier conversations), and it seems likely that the employer was shocked/appalled by the thought of being put under pressure by an employee whose contract was ending without prospect for a more desirable position. However, considering the circumstances (reference to two Belgian employees who had been given an indefinite contract despite not meeting the hiring requirements) it could have placed itself in plaintiff’s shoes and considered the appearance of discrimination or unjust treatment not to be unreasonable.