Discrimination on the work floor:
A new item of attention
for the (near) future?

Is the broad attention in the media for a recent decision
of the employment tribunal of Ghent in a case involving discrimination on the basis of age an indication of
the growing importance of the regulations concerning discrimination or was that broad attention mainly
due to the identity of the accused party?

Just the way it is for numerous other subject matters also the ban on discrimination is a subject matter with respect to which the European institutions have taken the lead. Obviously, the member states had to follow.

As a result, extensive regulations have been adopted in Belgium by the national authority as well as by the regional authorities.

Quite remarkable, as compared to the European regulations, the Belgian legislator has substantially extended the banned discrimination grounds: in addition to gender, religion or philosophy of life, handicap, age and sexual orientation, included in the European regulation, the Belgian legislator has added civil status, birth, fortune, political conviction, trade union persuasion, language, current or future health condition, physical or genetic quality and social birth in the Belgian legislation as banned grounds of discrimination.

Looking at the number of cases before the (employment) tribunals, involving complaints based on discrimination, it looks like discrimination is not a “hot issue” in the Belgian society.

It would therefore not be surprising that the broad attention in the media for the recent decision of the employment tribunal of Ghent in a case involving discrimination on the basis of age would be due mainly to the identity of the accused party – a kitchen manufacturer whose brand name became known as a result of his publicity campaigns in the media.

In any event, the lack of attention so far for the discrimination legislation should not be understood as an indication that there would be few or no problems in daily life. At the occasion of the decision of the employment tribunal of Ghent, UNIA, the Interfederal Equal Opportunity Centre, has called the attention to the fact that, by way of example, discrimination on the basis of age, although it often remains under the radar, constitutes a real problem, that will become more important as a result of the rise in the ageing population.

The poor attention in daily life is even more surprising because governmental institutions, such as UNIA, have been established particularly in order to fight all kinds of discrimination.

Beyond any doubt, it is very important in that respect that UNIA, at its own initiative, can initiate judicial procedures as claiming party at the occasion of individual infringements, subject to the consent of the aggrieved party. As an example of such action, reference can be made to the case before the employment tribunal of Ghent.

A tricky item in cases involving discrimination is the furnishing of proof, which is to be submitted in principle by the claiming party, unless this party can demonstrate facts, which may create an assumption of the existence of discrimination on the basis of one of the banned grounds. In that case, the defending party must submit evidence of absence of all discrimination.

In the case before the employment tribunal of Ghent, submitting evidence was not a problem: a representative of the kitchen manufacturer had replied to the applicant in all honesty and sincerity that he had the right profile for the vacant job, but that he nevertheless would not be invited for an interview because of his age (59 years)!

It is to be expected that cases of this nature will result in an increasing attention for discrimination issues and that also employers will be facing more and more claims based on discrimination.

An additional reason to be cautious, even more so because court decisions may provide UNIA with good justifications to keep sight of violators.

17 June 2016

Leila Mstoian - leila.mstoian@peeters-law.be
Marcel Houben - marcel.houben@peeeters-law.be

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