Belgium – agediscrimination.info

/ /

Belgian law includes a prohibition on age discrimination contained in the so-called Anti-Discrimination Act of 10 May 2007. This act transposes EU Directive 2000/78 (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.

Direct age discrimination is only justified in following cases:

  • The Anti-Discrimination Act specifies that with regard to employment issues, a different treatment based on age is justified if a characteristic constitutes an essential and determining professinal 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, including legitimate objectives of employment policy, labour market or all other comparable legitimate objectives, and if the means used to achieve that aim are 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 based on age is allowed and can justify direct and indirect differences based on age.
  • Finally, direct and indirect differences based on age can not be considered to be a discrimination if the difference in treatment is imposed by law.

Indirect age discrimination occurs where an apparently neutral provision, criterion or practice has harmful effects 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.

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;
  • the access to and the participation in or any other exercise of an economic, social, cultural or political activity accessible to the public.

With regard to employment issues, the act applies to, amongst others and not limited 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;
  • 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 Labour Court to stop discriminatory acts, e.g. discriminatory employment conditions. The law provides for summary proceedings.

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 a 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;
  • 650 EUR for moral damages only. This amount will be increased to 1300 EUR 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 generally, claims based on discrimination issues are not common in Belgium. Most of these claims are based on the prohibition on sex discrimination or (sexual) harassment.

There have been only a few cases based on age discrimination.

What claims are most common and what are the trickiest issues for employers?

As mentioned above, claims based on age discrimination are not common.

If the number of claims based on age discrimination increases, we would expect these cases to deal with differences based on age in supplementary pension and invalidity schemes and/or differences based on age in company social plans following a restructuring or differences in pay based on age in company and / or industrial schemes. We also believe more harassment claims might be based on age discrimination.

The trickiest issue for an employer is the possibility to annul discriminatory contractual provisions. In practice this means that an employee who is discriminated against because he/she lacks a beneficial provision, which for example younger or older employees have on the basis of a contract/policy, will be deemed to benefit from that provision. This means that all employees of a company might benefit from a provision that was meant solely for younger/older employees. This sanction is foreseen for all kinds of contracts (individual and collective) as well as policies and other documents.

Another issue could be the protection against dismissal. An employee might formulate a false claim with the sole objective of obtaining protection against dismissal.

The fixed damages might also trigger employees to launch more claims based on age discrimination.

Are there any specific exceptions in your laws?

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 new 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.

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.

It is not certain whether this difference should not be considered to be in breach of the European legislation on discrimination.

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

Commercial Tribunal Brussels, 7 March 2005

An organisation protecting the interests of consumers registered a complaint against the insurance company DKV.

DKV not only asked for different premiums in function of the age of the insured person (this was not found discriminatory by the consumer organisation) but also used different premium increases in function of age.

The use of higher price increases for older persons during the contract was found to be a discrimination based on age. The tribunal would only accept linear price increases.

Labour Tribunal Brussels, 2 December 2005 (A.R. 62733/03)

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

He was granted moral damages of 12.500 EUR because of abusive 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 discriminating and does not have a legitimate objective that can be reasonably and objectively justified.