Replacing a long-term ill employee. Attention, a discrimination issue lurks around the corner!

The well-functioning of an enterprise requires the filling of a vacuum left (unintentionally) by a long-term ill employee. But what is the best way to handle that as an employer?

A temporary employee via a temporary agency is an obvious solution, but an expensive one. Other options?

Attention please! A discrimination issue lurks around the corner. An employer established in the Leuven area experienced it firsthand.

An employee informs her employer that she received a diagnose of cancer. The employer replaces her by hiring another employee for an indefinite period of time.

But, how to handle things as an employer when the long-term ill employee has the luck to overcome the disease and tells you euphorically that he wants to get back to work … Can you, as an employer, muffle the employee’s euphoria and fire him. The Brussels Employment Court of Appeals did not think so.

What happened?

The employer, who owns a store chain of 14 establishments in total, received the bad news from the employee on 24 November 2012. The performance of the employment contract is suspended during the period of the treatment of the disease.

In the course of the month of December 2012 the employer hires another employee for an indefinite period of time. This new one replaces the sick employee, but this was never mentioned neither at the time of hiring nor any time thereafter.

After 21 months, the cancer patient gets the happy news that the treatment has been successful and that she can gradually resume her activities with her employer. 

On 14 August 2014 she gets in touch her employer to discuss the terms of gradually resuming her work. On 26 August 2014 the employer terminates the employment contract with payment of the severance pay. The C4-form states as the reason for the termination “lack of adjusted work for this employee”.

As a reply to the request for some more explanations concerning this reason, the employer refers to the hiring of another employee, an increase of the workload, the webshop, new products and cashing and framework programs, requiring a solid additional training, and the financial impossibility to maintain two persons at the employ for the same job.

The dilemma of the employer 

By hiring a replacement the employer has ensured a continued efficient functioning of his business. The replacement is a devoted worker and there is nothing to criticize about her performance. So, why firing her?

In addition, the return of the former ill employee is possible only in a gradual way and requires adjustments with respect to the organisation of the work, etc. … A lot of hassle and not without costs. 

So, why making life more difficult than necessary?

The judge intervenes

The woman goes to court and claims payment by her ex-employer of a compensation equivalent to six months’ remuneration on the basis of discrimination because of handicap / current or future health condition.

The Employment tribunal of Leuven denies her claim, but by its decision of 20 February 2018 the Third Chamber of the Brussels Employment Court of Appeals holds the claim founded and holds the former employer liable for payment of a compensation equivalent to six months remuneration on the basis of discrimination because of handicap.

The legal framework

The law of 10 May 2007 aiming at fighting certain forms of discrimination prohibits direct and indirect discrimination, o.a on the work floor, because of age, sexual nature, civil status, birth, wealth, believe or life contemplation, political conviction, union conviction, language, current or future health condition, handicap, physical or genetic condition, social background.

Discrimination includes a.o. the refusal of the employer to make reasonable adjustments to the benefit of a person with a handicap.

A "handicap" is defined as a limitation resulting from a long lasting physical, mental or psychological condition, which may hinder the person concerned to participate in professional life as completely, effectively and at the same level as other workers.

"Reasonable adjustments" are adequate measures by the employer in a concrete situation allowing his employee with a handicap to be employed and the employer is deemed to take such measures, unless these measures would represent an unreasonable burden for the employer.

The position of the Employment Court of Appeals

A distinguishing difference between a "handicap" and a "disease" is the long lasting nature of the condition, which causes the limitation. In this case the Employment Court of Appeals held that the limitations due to cancer were long lasting and that therefore, considering those circumstances, the notion of “handicap” as referred to in the anti-discrimination legislation, applies.

In addition, the Employment Court of Appeals held that the employer wrongfully failed in this case to introduce reasonable adjustments, that is, that the reasonable adjustments, which the employee would have allowed to gradually resume work, did not cause unreasonable burdens for the employer. In so deciding, the Employment Court of Appeals took into consideration a.o. the following elements:

·  The employer owns 14 establishments and he did not bring in evidence that adjusted work was not available in any of these establishments;

·  Operational changes often occur in an enterprise and can not constitute a hindrance for a gradual resumption of work; additional training is a normal fact of life in those circumstances and is the appropriate measure to quote with these evolutions in order to allow the worker to resume work;

·  The employer’s business was profitable in the forgoing years and, therefore, there was no economic need for a dismissal and the adjustments (working rhythm, training, …) did not represent an unreasonable burden. 

Some considerations

It may be pointed out that the employer at stake – to put it softly – did not turn out to be an example of a contemporary and human HR-approach: immediately and simply firing an employee, who overcame and won from a cancer disease after 21 months, after she had informed the employer that she was ready again to gradually resume work, is not an example of a human HR-policy.

The fact that the Employment Court of Appeals took into consideration the element that the employer owned 14 establishments to offer adjusted work to the employee is remarkable, especially considering the fact that these establishments are spread all over Flanders. This suggests that adjusted work in any establishment would constitute a reasonable adjustment, no matter where that establishment is located. So, also if this establishment is located in Western Flanders, and this for an employee who resides and was working in the Leuven area?

The fact that the Employment Court of Appeals takes into consideration the profitability of the employer’s business is remarkable as well. 

The replacement of an employee with a long-term incapacity becomes, in the light of this decision, a delicate issue. If the replacement is hired under an employment contract for an indefinite period of time, as in the case at hand, the employer is almost obliged, as a result of this decision, to keep both employees at the employ for one single job or to opt for the firing of the replacement worker.

Obviously, things can be arranged: instead of using an employment contract for an indefinite period of time, the replacement can be hired by means of a replacement contract or can be employed via a temporary agency. Beyond any doubt, not necessarily ideal solutions: temporary work is an expensive option and a replacement contract is not attractive for the candidate-replacement, because no job security.

The media have been focusing on the fact that cancer was qualified by the Employment Court of Appeals as a handicap. The fact that cancer has the reputation of being one of the most awful diseases, makes it probably understandable that the media were focusing on this aspect. However, this decision opens the same door for all other long-term diseases. 

At the moment when this case occurred, the Royal Decree of 28 October 2016 did not yet apply. This Royal Decree introduced specific procedures in view of reintegrating long-term ill employees on the work floor of their employer. Obviously, these procedures have now to be respected.

The legislation prohibiting discrimination on the work floor (and elsewhere), has been – contrary to Anglo-Saxon countries - for a long time a quasi forgotten issue in the Belgian HR-world. Since a few years, the situation has changed. The decision of the Employment Court of Appeals of Brussels is an example of that change. So, paying attention to the anti-discrimination legislation becomes more and more the message!

Needless to say, we will be pleased to be available for assistance or information, as may be required.

Marcel Houben – marcel@houben-hrlegal.eu