Disclaimer. The English translations provided herein are generated by artificial intelligence from Dutch and French content. While every effort has been made to ensure accuracy, we cannot guarantee that the translations will be error-free. The translated content is for readability purposes only and should not be considered as legal advice. For accurate information, employers and HR professionals are advised to consult the original versions in Dutch or French, or to consult your Securex Legal Advisor.
What exactly does this protection entail?
Fertility treatments and medically assisted reproduction programmes're sometimes tough and time-consuming. Your employee has to undergo multiple examinations and be absent from work regularly (consultation with specialists, medical examinations, treatments, etc.). These absences may affect the organisation of work in your company. Therefore, a new two-tier protection is being introduced to protect your employee.
Protection against dismissal
Your employees undergoing fertility treatment or a medically assisted reproduction programme are protected against dismissal. As an employer, you can only dismiss them for reasons unrelated to their absence due to fertility treatment. Moreover, the burden of proof is on you.
Protection against discrimination
Your employee is also protected against discrimination. Thus, fertility treatment or a medically assisted reproduction programme and related absences may not harm your employee. Specifically, after the end of this treatment, your employee must:
- Must return to the same position or, if this is not possible, must be given an equivalent or similar position
- Must be entitled to any improvement in working conditions to which he would have been entitled during his absence
- Should be entitled to any acquired rights or rights in the making during his absence
What does this mean for your employee?
The bill initially envisaged a right of absence with pay for your employee. Ultimately, this will not be the case. As a result, you are free to regulate your employee's absence in different ways. For example:
- Paid leave
- Justified absence without pay
- Temporary adjustment of working arrangements
In order to qualify for dismissal protection, your employee must also inform you of his absence. He must provide you with a medical certificate showing that he needs to go to medical examinations and treatments related to infertility or follow a medically assisted reproduction programme.
The employee must provide you with a medical certificate showing that he needs to go to medical examinations and treatments related to infertility or follow a medically assisted reproduction programme.
How long does the protection last?
Your worker's protection runs during a period that begins when you are notified by a medical certificate and ends at the end of a period of two months from this notification.
Example
Your employee follows a two-month treatment cycle. He sends you a medical certificate for each new monthly cycle.
Attest 1: notification on 1 May 2024 so protection until 30 June 2024
Attest 2: notification on 1 June 2024 so protection until 31 July 2024
In total, your employee is protected for 3 months.
What are the penalties for wrongful dismissal?
In the event of unjustified dismissal (no sufficient reason or reasons related to absence due to fertility treatment or while attending a medically assisted reproduction programme ), you are liable to pay a forfaitary compensation. This compensation is equal to six months' gross salary, in addition to the compensation for termination of the employment contract.
This forfaitary compensation of six months' gross pay is also due for violation of the prohibition of discrimination.
The Act does not prohibit cumulation of these allowances. Your employee could therefore cumulate the discrimination compensation and the dismissal protection compensation. Moreover, your employee could also cumulate either of these compensation payments with other protection payments. So pay close attention when you dismiss your employee.
Implementation
The Act was published in the Belgian Official Gazette on 18 April 2024. The new protective measures will enter into force 10 days after this publication, on 28 April 2024.
What does Securex do for you?
Do you want to know more about dismissal protection and anti-discrimination rules? Contact your Legal Advisor Securex at myHR@securex.be.
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