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Does multiple discrimination require multiple compensation awards? A new Belgian ruling

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A Belgian court has ruled that a candidate who was discriminated against on the grounds of both her disability and pregnancy during the recruitment process was entitled to two cumulative compensation awards. However, she was not entitled to separate awards in relation to disability discrimination during the recruitment procedure and to the decision not to hire her.

With a judgment of 28 June 2021, the Labour Court of Antwerp followed up on a striking labour tribunal judgment of 29 September 2020. In the earlier judgment, an employer was for the first time ordered to pay three fixed compensation awards because of triple discrimination against a candidate-employee. Given the controversial nature of this judgment, the employer went to the labour court, which imposed two, rather than three compensation awards.

The claimant was a woman with a hearing impairment who had applied for the position of Research and Development Assistant at a pharmaceutical company (see here for our earlier report). The labour tribunal ruled that the candidate-employee had been discriminated against based on disability both during the recruitment procedure and with regard to the decision not to recruit her and therefore imposed two separate compensation awards. In addition, the decision not to hire her was also related to her pregnancy, and the Gender Act equates this with discrimination based on gender. The candidate-employee received separate compensation for this as well.

The employer appealed against the judgment to have the payment of the compensation and the cumulative awards declared unfounded.

Single compensation award for discrimination based on disability

The labour court confirmed that there was discrimination based on disability during the recruitment procedure and with regard to the decision not to recruit the candidate, but contrary to the labour tribunal, it only imposed one compensation award.

The court pointed out the interdependence of the recruitment procedure and the subsequent non-recruitment decision. The discrimination based on disability with regard to the non-recruitment decision was, according to the court, among other things evident from the recruitment procedure. Furthermore, the court pointed out that no separate damage resulted from the discrimination during the recruitment procedure and the decision. The result was the decision not to recruit the candidate and a single compensation award was considered to compensate the material and moral damage.

The proportionate and reasonable nature of a compensation award also has to be taken into account. Granting of two separate damages awards for failure to respect one protected criterion did not seem reasonable nor proportionate to the court, given the interdependence of the procedure and the decision and the lack of separate damage. The court also feared that granting two compensation awards would have a counterproductive effect. It would give employers an ‘incentive’ to immediately reject a candidate-employee with a disability instead of giving him or her a chance to participate in the selection procedure. This would not serve the dissuasive purpose of the compensation.

Cumulative compensation under the Gender Act

Like the labour tribunal, the labour court also decided that there was discrimination based on gender. The labour court decided that cumulating compensation awards because of discrimination based on disability and gender was indeed possible. The court ruled that although the Antidiscrimination Act and the Gender Act are closely intertwined, they should be considered as two separate regulations each providing for a fixed compensation award in the event of discrimination. There is no prohibition on cumulating compensation awards in these acts. Since the employer violated two different discrimination acts, the court was entitled to grant cumulative compensation awards. Moreover, according to the court in this case, there was separate damage. Although the end result of the violation of the two protected criteria was the same (the decision not to hire the candidate), morally speaking there was a different form of damage to the candidate-employee’s integrity.

Action point

This remarkable judgment confirms that the violation of several protected criteria may give rise to multiple compensation awards. It is therefore important for employers to make well-considered, well-founded decisions for example in the context of recruitment procedures and to document them. The Antidiscrimination Act and Gender Act state that the employer has to prove that there is no discrimination when the alleged victim provides facts that raise a presumption of discrimination.