Absenteeism due to work incapacity is a phenomenon that concerns many employers. It can cause considerable disruption to the organisation and productivity of their business. When faced with prolonged or repeated absences, companies are often forced to consider whether dismissing their sick employee(s) might not be an option.
Dismissing an employee who is unable to work is permitted in Belgium, but there is a risk that the person dismissed could claim discrimination on the grounds of their state of health. To avoid this risk, the company often specifies that the dismissal was motivated by the ‘disorganisation’ caused by the multiple absences of the employee in question. While two or three years ago, case law still validated this reason and thus ruled out the existence of discrimination, current case law in this area has become stricter and it has become very difficult in practice to prove this disorganisation.
Two general criteria
In principle, in order to rule out the existence of discriminatory dismissal, it is necessary to be able to demonstrate compliance with the following two criteria:
- The dismissal is based on a legitimate purpose. In other words, in the context we are dealing with here, the company must prove that the purpose of dismissing the sick worker was to put an end to the disorganisation suffered, which presupposes proving that the absences were actually hindering the smooth operation of the company;
- Dismissal is a necessary and appropriate means of achieving this legitimate purpose. In other words, the company must prove that no solution other than dismissal was satisfactory to put an end to the disorganisation suffered.
If the company is unable to prove these two elements, it is liable to a penalty equivalent to 6 months' pay, which may be limited to 3 months if it can show that the dismissal would still have taken place in the absence of discrimination.
The requirement for concrete and detailed evidence
Current case law analyses in detail, on a case-by-case basis, whether the company provides concrete proof of disorganisation. Below are some examples of the essential evidence that must be gathered to limit the risk of being found guilty of discriminatory dismissal of a sick worker:
- All medical certificates: Case law has already accepted that several short absences are sometimes more disruptive than long planned absences. In this respect, the Bradford index may be useful, but it will not be sufficient on its own to prove disorganisation.
- Evidence of replacement attempts: The use of temporary workers, workers on fixed-term contracts, workers on replacement contracts, or the reassignment of tasks internally are all replacement attempts to which case law attaches great importance. Some functions are difficult to replace. In such cases, refusals of offers or emails to temporary employment agencies to ask if a qualified person is available may, for example, be used.
- Rearrangement of working hours: This shows that the company has had to reorganise to compensate for repeated absences.
- Colleagues' work overload: This can be demonstrated through the provision of overtime or the impossibility of taking leave, for example.
- Absence-related complaints: Any complaints from colleagues, customers or line managers are important evidence of disorganisation.
- Evidence of work backlogs and delays: This can be shown, for example, by complaints or internal statistical documents.
- Last-minute notification of absences: A worker who constantly notifies the company of his or her absence at the last minute is also an element of disorganisation validated by case law.
Caution and anticipation
Dismissing a sick worker whose absences cause disorganisation is in principle permissible, but any employer who has to take such a decision runs the risk of having discriminated on the grounds of health. To limit this risk, a complete, detailed and well-documented case proving the disruption is an essential prerequisite. Preparation of this file and extreme caution prior to the decision to dismiss are essential to avoid costly litigation and the risk of discrimination.
By Zoé Harles, Associate NautaDutilh and Thierry Duquesne, Partner NautaDutilh
You may also be interested in this article:
Dismissal and proof of grounds: what responsibility does the employer have?