On 23 May 2022, the Labour Court of Brussels ruled on the obligation of spontaneous presentation to the control doctor for employees whose absence due to illness exceeds a certain objective threshold. The Labour Court was of the opinion that when an employer provides such a procedure, the obligations of the employee are not increased. Furthermore, the Labour Court ruled that there was no discrimination on the basis of present or future health status either.
The employer, who was active in the security sector, had some years ago – in consultation with the works council – introduced a new absenteeism policy in the company. The procedure was included in the work rules and provided that employees who had been absent for short periods on numerous occasions due to illness, and whose absenteeism exceeded a threshold objectively set by the employer, had to present themselves spontaneously to the control doctor whenever they reported sick. If this procedure was not followed, the employees concerned were not entitled to guaranteed pay. Of course, this obligation to present oneself spontaneously to the control doctor only applied to employees who were allowed to leave their home.
One employee, a security guard, did not follow this procedure because he considered it illegal. More specifically, the employee considered that this procedure unlawfully increased his obligations under the Employment Contracts Act and was also discriminatory. The employee thus demanded the payment of his guaranteed salary and went to the Labour Tribunal, and then also to the Labour Court.
No unjustified increase of the employees’ obligations
First of all, the employee argued that the regulation in the work rules, which introduced an obligation for certain employees to present themselves spontaneously to the control doctor, implied an unauthorised increase of the obligations of the employees (as prohibited by Article 6 of the Labour Contracts Act). The employee argued that the employer’s arrangement went far beyond what is provided for in Article 31 of the Employment Contracts Act, which regulates, among other things, the right to inspect the incapacity for work.
The Labour Court disagreed.
It confirmed that the request to present oneself to the control doctor does not have to be formulated individually by the employer for each new period of absence. This request can be included collectively in the work rules and can also be limited to a group of employees on the basis of objective and transparent criteria. In this case, the employer took the Bradford factor into account when determining the list of employees who had to present themselves spontaneously to the control doctor.
No discrimination on grounds of current or future health status
Furthermore, the employee argued that this regulation made an unjustified distinction between (sick) employees, which, according to him, constituted discrimination on the basis of the current or future health status.
The Labour Court ruled that there was indeed a presumption of discrimination on the basis of the protected criteria of current or future health status because the employer effectively made a distinction between two categories of unfit employees, based on their specific absenteeism profile, and thus on their health status. The obligation in this case to always report spontaneously to the control doctor, moreover with the risk of losing the right to guaranteed pay, can be considered as unfavourable treatment.
Consequently, the employer had to provide (counter)evidence and thus demonstrate that this difference in treatment due to the health condition was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate and necessary.
The Labour Court ruled that the employer succeeded in this burden of proof.
Firstly, there was a legitimate aim. The Labour Court considered it logical that short, frequent and unforeseen periods of illness lead to more organisational problems and are also more burdensome for other employees who have to fill in unexpectedly. This is all the more true in a security company that deploys its security officers day and night, every day of the week, to different customers, at different locations.
According to the Labour Court, the closer follow-up by the control doctor, combined with follow-up interviews by the managers, was also an appropriate measure for detecting a possible link between the frequent absences and the working conditions.
Moreover, according to the Labour Court, a selection of employees was also necessary. To have all sick employees systematically examined by the control doctor would have been very costly for the employer.
The selection that was applied, also allowed to limit this examination to the cases where the absence made the organisation of the work more difficult, so that the measure was also appropriate.
The fact that there may be objective medical reasons why an employee is regularly unfit for work for short periods does not detract from this. In such a case, the control doctor will be able to establish the justified character of the absence without any doubt.
The Labour Court therefore decided that in this case there was no discrimination on the basis of the present or future health status.
Consequently, the employee was not entitled to guaranteed salary.
Key message
Have you considered introducing an absenteeism policy within the company?
The HR Beacon 2022 already shows that more than half of the companies today have not yet developed a policy on the reintegration of the long-term sick (53.3% answered "No", 40.93% answered "Yes" and 5.77% "Not applicable").
This judgment by the Brussels Labour Court demonstrates that care must be taken to avoid discrimination on the basis of health or disability. To our knowledge, it is the first judgment of its kind and therefore cannot be generalised.
We would also like to point out that the processing of health data is strictly regulated within the framework of data protection legislation.
