International Women’s day: an overview of the legal framework and ideas for action
08/03/2021

A refresh of the legal framework and ideas for action

In 2002, Article 10 of the Belgian constitution was amended to include the explicit confirmation that equality between women and men is ensured. Now, almost 20 years later, it is clear that this equality has still not been fully obtained in many fields of our daily lives.

International Women’s day provides the ideal opportunity to refresh your knowledge of the current legal framework aimed at increasing gender equality (points 1 and 2).

Conscious that the legal framework alone falls short in ensuring gender equality, point 3 of this newsletter suggests some actions companies may take. In addition to the obvious reasons to promote gender equality, companies are increasingly attentive to the topic as more ESG screens are incorporating Board diversity and (gender) Pay Transparency into their analysis. In 2002, Article 10 of the Belgian constitution was amended to include the explicit confirmation that equality between women and men is ensured. Now, almost 20 years later, it is clear that this equality has still not been fully obtained in many fields of our daily lives.

1. Board diversity

Board diversity has received increasing attention of the legislator over recent years.

In Belgium, Boards of listed companies and autonomous public companies must consist of a minimum of a third and a maximum of two- thirds of members of one or the other gender. While this obligation has obviously resulted in a significant increase in female representation in boards, on average, according to the 2020 Global Gender Gap Report of the World Economic Forum, 30.70% of board members is female, which is still not equal to one third.

In addition, the revised Corporate Governance Code of 2020 also has its part in promoting board diversity:

  • when making board appointments, listed companies must consider diversity, including gender diversity, as well as skills, experience and knowledge. This requirement applies on a “comply - or - explain principle”. Companies have to comply with the Code or explain in their annual report (“Corporate Governance statement”) why they choose not to do so;
     
  • Nomination Committees of credit institutions must set a target for the representation of the under-represented gender on the Board of Directors. The Committee must set out a policy to increase the number of representatives of this gender on the Board of Directors and comply with this to achieve the target. Furthermore, the credit institution must report annually against this target and progress towards achieving it.

To date, there are still no general gender quota applicable to non-listed companies. The Belgian Corporate Governance Code (“Code Buysse”) requires non-listed companies to consider diversity, including in respect of gender and age, when making appointments to the Board. The Code is, however, not binding and only contains guidelines for non-listed companies.

2. Equal pay

The principle that men and women should receive equal pay for equal work has been enshrined in the European Treaties since 1957. Still, equal pay between women and men remains a global issue.

One of the factors that plays a considerable role in a significant difference in payment is the lack of transparency on pay. To tackle this, the European Commission, conscious of the fact that women in the EU alone earn 16% less than men on average, has introduced a proposal for a directive, the so- called Pay Transparency Directive. If the Directive would be adopted, it aims to introduce binding pay transparency measures, make pay systems more transparent, improve public understanding of the relevant legal concepts and to strengthen enforcement mechanisms.

At national level, the Belgian law of 22 April 2012 on the fight against the pay gap is intended to identify and combat the pay gap at all levels: at inter- professional level through the obligation for the social partners to negotiate measures to combat the pay gap, at sectoral level through the introduction of gender-neutral job classifications and, finally, at company level through the organisation of compulsory consultation and the adoption of equal opportunities plans. However, as noted by the European Commission, there is no effective mechanism in place in Belgium to monitor compliance with the legislation in this regard.

  • To conclude, while there have been some legislative efforts to promote gender equality that undoubtedly had a positive impact, it is clear that there is still a long way to go.

3. #ChooseToChallenge: ideas to promote gender equality and to combat gender discrimination within your company

a) Introduce a positive action plan

Discrimination on grounds of gender is prohibited in Belgium. Companies wishing to implement measures providing for a different treatment for women, even if this treatment is favourable, should thus be cautious as this may constitute unlawful discrimination under Belgian discrimination legislation.

However, Belgian legislation allows private companies to introduce positive action plans within their company provided certain conditions are met:

  • The underrepresented groups must experience an obvious inequality within the company. It is up to the company to provide evidence of such inequality: e.g. with personnel data showing that (C-level) staff is predominantly male;
     
  • The disappearance of this inequality must be designated as the objective pursued with the positive action(s): e.g. mentoring schemes designed to enhance the growth/leadership potential of women within the company;
     
  • The positive action(s) must be temporary (with a maximum of three years);
     
  • The positive action(s) must be proportionate to achieve the intended objective; it should thus be assessed on a case-by-case basis whether the means used are appropriate and necessary: e.g. absolute quotas in private non-listed companies could (depending on the circumstances) be deemed disproportionate, whereas targets less so; and
     
  • The positive action may not unnecessarily restrict other people’s rights: e.g. in the framework of a gender recruitment policy, all criteria relating to the person/merits of the candidates should thus be taken into account.

Positive action plans that meet the above conditions do not constitute discrimination.

Since 2019, we have been increasingly advising Belgian companies on positive action plans as Belgian legislation now offers private companies the opportunity (but not the obligation) to have their positive action plans approved by the Belgian Minister of Employment. Obtaining such approval provides comfort that the conditions are met and safeguard the company against potential discrimination claims.

b) Speak-Up:GenderandWhistleblowing

While the obligation to set up a whistleblowing mechanism at company level currently only exists for financial institutions and the public sector in Belgium, the EU whistleblowing Directive (due to be transposed by 17 December 2021) provides, amongst others, for the general obligation for private companies with at least 50 employees to set up an internal whistleblowing reporting channel and minimum standards for the protection of persons reporting on breaches. As a result, whistleblowing has gained increasing attention both at national and EU level and companies may need to prepare setting up such internal reporting channels.

In that context, companies could consider raising sexual harassment and/or gender discrimination complaints via whistleblowing procedures (taking into account the interaction with the already existing procedures on psychological risks at work).

c) Running an IWD 2021 #ChooseToChallenge campaign

Finally, the IWD-website1 provides plenty of ideas for campaigning for gender equality.

For more ideas and how to implement them in a legally compliant manner, please contact the Linklaters E&I Team.

 

1 IWD: Groups worldwide plan successful IWD activity (internationalwomensday.com). [link to be included by marketing]

 

 

Key contacts

Jennifer Granado Aranzana

Associate
Tel: (+32) 2 501 93 99
Mob: (+32) 4 726 53 803 jennifer.granado_aranzana@linklaters.com

Aurélie De Meester

Junior Associate
Tel: (+32) 2 501 92 53
Mob: (+32) 4 796 98 972 aurelie.de_meester@linklaters.com

Related : Linklaters LLP

[+ http://www.linklaters.com]


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