Psychosocial risks and discrimination at work: a ‘wind of change’ since 1 June 2023!

The rules governing discrimination and psychosocial risks at work have been revised to bring them in line with European legislation and the European Court of Justice’s recent case law.

Various legislation has now changed, including: the Gender Act of 7 May 2007, the Antidiscrimination Act of 7 May 2007, the Racism and Xenophobia Act of 30 July 1981, the Wellbeing Act of 4 August 1996, and the Wellbeing at Work Code. These new rules entered into force on 1 June 2023.

What does this mean in practice for your company?

A link with discrimination can be included in the request for formal psychosocial intervention related to mobbing (FPI)

  • Pre-reform: Employees who filed a request for an FPI and who wanted to link it to a discrimination criterion had to inform their employer of their request, and the employer had to verify that the discrimination legislation applied. 
  • Post-reform: An employee who files such a request for an FPI can now directly link it to a discrimination criterion. The prevention advisor (psychosocial risks) will have to inform the employer not only of the employee’s identity, but also of the type of facts the request is based on (i.e. bullying, violence or sexual harassment),   whether or not the alleged facts are linked to a discrimination criterion, and that the employee benefits from a protection against retaliatory measures. The employer will also have to be informed of the identity of any witness(es) (provided that they agree to this disclosure). 
  • Takeaway: Employers now receive more information relating to the type of request. If the employee links the request for an FPI to a discrimination criterion, then he/she will be able to call upon the protection based on the discrimination legislation. 

The starting date of the protection against retaliatory measures 

  • Pre-reform: Employees who introduced a request for an FPI (mobbing) or filed a complaint (discrimination) were protected against retaliatory measures as from the moment  the request or complaint was submitted.
  • Post-reform: Employee protection against retaliatory measures now starts from the moment the employer is aware (or could reasonably be aware) of the employee’s initiative in this regard.
  • Takeaway: Employee  protection against retaliatory measures may take effect sooner, as they can now benefit from protection even before submitting a request or complaint, provided that they can prove that the employer knew or could reasonably know about it.

Abuse of the procedural means in the context of mobbing and discrimination  

  • Pre-reform: Although the Wellbeing Act included a general  provision prohibiting abuse of any procedural means, no specific legal provision regulated the consequences of such abuse. However, case-law considered that the protection against retaliatory measures did not apply if the procedures were used for a purpose other than that set out by law.
  • Post-reform: The law now expressly states that the protection against retaliatory measures in the context of mobbing and discrimination does not apply if the procedures are ‘abused’. It is also expressly stated that if an employee abuses existing procedures, then he/she may be liable to pay damages.
  • Takeaway: This new explicit provision in the law clarifies the consequences of any abuse of procedures. Therefore, if an employee ‘misuses’ the existing procedures for the sole purpose of avoiding a dismissal, such an employee will no longer be protected, and may be subject to the payment of damages.

Protection against retaliation related to the content of a complaint or a report in the context of discrimination and mobbing

  • Pre-reform: An employee who filed a request for an FPI or a complaint has been protected against retaliation only on the basis of the filing of the request, complaint, report, notification, or legal action, but not regarding its content.
  • Post-reform: Following the new legislation, employees are now also protected against retaliation based on the content of the request or complaint.
  • Takeaway: Employers considering dismissing such a protected employee should ensure that the adverse action is not only unrelated to the filing of the employee’s request, complaint, report, notification, or legal action, but is also unrelated to facts that can be inferred from its content.

Extension of the material scope of protection in the case of discrimination

  • Pre-reform: Only employees who could be considered as “official witnesses” (i.e. witnesses who could produce a signed and dated document of their testimony) were protected against retaliatory measures.
  • Post-reform: After the ECJ’s Hakelbracht ruling, anyone who has made an “active contribution” to the benefit of the discrimination victim is also protected (e.g. employees who have ‘stood up’ for the victim, or those who have reported the situation to the HR department).
  • Takeaway: Employers have to be aware that not only witnesses who have met strict formalities will be protected against retaliation, but also any employees who have simply ‘stood-up’ for a victim of discrimination.

Accumulation of indemnities

  • Pre-reform: Various uncertainties existed about the right to accumulate i) an indemnity for discrimination or mobbing and ii) an indemnity awarded as a result of any adverse treatment (e.g. dismissal).
  • Post-reform: Belgian law now explicitly states that such accumulation is possible.
  • Takeaway: Employers should be aware that employees can accumulate different indemnities. For instance, if an employee on parental leave is not promoted for only this reason, then he/she will be able to claim a discrimination indemnity of 6 months’ salary.  If the employer then dismisses him/her because the employee initiated legal action, then the employee can claim a second indemnity compensating for the retaliatory measure taken by the employer (i.e. a lump-sum amount equal to 6 months’ salary, or an amount equal to the prejudice actually suffered by the employee).

Re-integration request in the context of discrimination 

  • Pre-reform: To benefit from an indemnity for retaliatory measures, employees were required to first introduce a reintegration request to be reestablished in the company.
  • Post-reform: An employee whose employment contract has been terminated is no longer obliged to introduce such a reintegration request, which has now become optional.
  • Takeaway: Employers should bear in mind that it will now be easier for employees to benefit from an indemnity for any retaliatory measure, since they no longer have to submit a prior reintegration request.

All of these modifications entered into effect on 1 June 2023. Given they tend to (even further) increase employee protection in the context of psychosocial risks at work and discrimination, employers should be even more careful when dismissing an employee or applying an adverse measure. 

Philippe De Wulf
Esther Soetens
Alexandre Calain