In a detailed and well-reasoned judgment of 19 March 2013, the Brussels Labour Court of Appeal ruled that the termination of an employment contract on grounds of permanent incapacity to work is not discriminatory in comparison to other employees in similar situations. The Brussels Labour Court of Appeal thus confirmed the judgment of the Brussels Labour Court of 26 May 2011 that a company has the right to terminate an employment contract on grounds of permanent incapacity to work.
In the case at hand, an employee had been incapacitated to work since 22 March 2000 and the company terminated the employment contract on the basis of the employee’s permanent incapacity to work. The employee brought an action before the Brussels Labour Court, disputing that the termination had been notified properly to him and sought severance pay in lieu of notice. The company requested, by means of a counterclaim, the appointment of an expert to assess the permanent incapacity to work invoked by the company.
The Brussels Labour Court held that no proper termination of the employee had taken place and that he was thus still employed by the company. The Court also appointed an expert to investigate whether the employee was permanently incapacitated to perform his activities. In his final report, the expert concluded that the employee was indeed permanently incapacitated to work, following which the company terminated the employment contract with the employee on that basis. The Brussels Labour Court confirmed that, based on the final report of the expert, the employee was indeed permanently incapacitated to work and that, therefore, the termination of the employment contract based on force majeure without any notice or compensation was justified.
The employee appealed this judgment. He claimed that he was not permanently incapacitated to work and that, if the Labour Court of Appeal were to decide otherwise, the termination of his employment contract on the basis of permanent incapacity to work that does not give rise to any form of compensation would discriminate against him in comparison to other employees in similar situations.
As Article 34 of the Law of 3 July 1978 regarding Employment Contracts (“LEC”) (Wet betreffende de arbeidsovereenkomsten/Loi relative aux contrats de travail) which governs the termination of an employment contract on the basis of permanent incapacity to work has not yet entered into force because of the lack of the requisite implementing decrees, the Brussels Labour Court of Appeal held that it is not possible to base the termination of the employment contract on this provision.
Therefore, according to the Brussels Labour Court of Appeal, it should be investigated whether the termination based on force majeure under Article 32 of the LEC because of permanent incapacity to work constitutes discrimination.
The Brussels Labour Court of Appeal went on to hold that the Law of 10 May 2007 against certain forms of discrimination (“Anti-Discrimination Law”) (Wet ter bestrijding van bepaalde vormen van discriminatie/Loi tendant à lutter contre certaines formes de discrimination) contains a closed system of justifications for any distinction in treatment if Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation requires this, and an open system of justification for any distinction in all other cases.
In the case of a direct distinction based on the current and future health condition, a criterion not mentioned in Directive 2000/78/EC, the Anti-Discrimination Law provides for an open system of justification of discrimination (Article 7 of the Anti-Discrimination Law).
The Brussels Labour Court of Appeal also considered Article 8 of the Anti-Discrimination Law (applicable if the incapacity is caused by invalidity), which stipulates that a distinction can be justified only if it is based on essential and determining professional requirements. For indirect discrimination, the Labour Court of Appeal furthermore referred to Article 9 of the Anti-Discrimination Law, which contains a similar rule.
Based on the final report of the expert and the above provisions of the Anti-Discrimination Law, the Brussels Labour Court of Appeal held that, due to the permanent incapacity to work of the employee, the employer was entitled to terminate the employment contract on the basis of force majeure under Article 32 of the LEC. The Labour Court of Appeal also held that the employee no longer has the essential and determining professional requirements to perform not only his previous function, but all possible functions. The Brussels Labour Court concluded that the distinction was justified and that no discrimination had occurred.
