A new regulation modifying the protection against retaliation in matters of discrimination and violence, moral or sexual harassment at work was published in the Belgian State Gazette on 15 May. It consists of a law and a royal decree that amend three “anti-discrimination” Laws and the Law on well-being at work with regard to protection against prejudicial measures in the context of violence at work or moral or sexual harassment at work and Title 3 of Book I of the Code on Welfare at Work, concerning the employer's information on protection against prejudicial measures in the internal procedure. These modifications were necessary to comply with the relevant European directives.
Context
Until now, a victim of violence at work or moral or sexual harassment at work could use the internal procedure of the company, claim respect for his or her rights before the courts by means of legal actions and benefit from protection against any prejudicial measure (also called retaliation) against him or her on the basis of the Law on well-being at work. Indeed, the “anti-discrimination” Laws referred, for employees and assimilated persons, to the exclusive application of the Law on well-being at work when it comes to such behaviour.
However, in the past, the European Court of Justice and the European Commission have pointed out that the protection provided by this Law against prejudicial measures was too restrictive in comparison with European legislation. The modification of the four above-mentioned laws is the result of this assessment.
What's going to change
From now on, the rules protecting employees against prejudicial measures taken by the employer will be found in one of the three “anti-discrimination” laws when the facts relate to violence or moral harassment at work linked to a discrimination criterion referred to in the definition of violence and moral harassment at work or when it concerns sexual harassment at work.
The rules of protection against prejudicial measures will also be more protective.
- Firstly, the protection against prejudicial measures is extended to other categories of employees. Thus, this protection will no longer cover only the employee who has filed a complaint, or on whose behalf the complaint has been filed, or witnesses in Courts who meet the conditions determined by law. It will protect:
- employees who intervene as witnesses in favour of the person concerned by the alleged violation. It is important to note that the formal requirements currently applicable to testimony will no longer apply;
- employees who report the alleged violation in favour of the person concerned. This may therefore be a simple informal warning, internally, about the alleged violation;
- employees who have filed a complaint in favour of the person concerned by the alleged violation. The law clarifies the notion of complaint;employees who give advice or provide help or assistance to that person;employees who invoke the issue of the alleged violation;
- the employee for whose benefit the above acts are performed.
To benefit from protection, the employee must demonstrate that a complaint has been made or that legal action has been taken. This proof may be provided by any legal means.
- As a counterpart to these extensions, the law makes it clear that the protection does not apply in the event of abuse of the procedures, and that such abuse may give rise to the payment of compensation. Furthermore, the law provides that once an employee is covered by the protection, the employer may not take any prejudicial measure against him or her, except for reasons that are not related to the filing or content of the report, complaint, legal action or other protected action.
- The law also changes the beginning of the protection period. This protection does not start anymore at the moment when the complaint is filed but at the moment when the employer became aware of the report, complaint, legal action or other protected action or could reasonably have been aware of it.
- The other provisions (sanctions, repartition of the burden of proof, etc.) included in the anti-discrimination laws remain identical in principle to the current rules.
Logically, the new legislation on protection against prejudicial measures also amends the Law on well-being at work to refer to the new provisions of the “anti-discrimination” Laws. The protection against prejudicial measures in the Law on well-being at work will now only cover violence at work or harassment at work that is not related to one of the discrimination criteria.
The new regulation also modifies the law on well-being at work in other aspects. For example, new criteria that can be the subject of, among other things, violence at work and harassment at work have been added to reflect the new protected criteria introduced in the Gender Act. These are gender characteristics, pregnancy, childbirth, breastfeeding, maternity, adoption, medically assisted reproduction, gender reassignment, paternity and co‑maternity.
Key message
As an employer, you should be aware that, in the future, any employee who, in good faith, acts as a witness, files a complaint or report, raises the issue of a violation of one of the “anti-discrimination” laws, gives advice or provides assistance to a person who is a victim of violence or harassment at work related to a discrimination criterion is protected from any prejudicial measure against him/her.
