A dismissal during sick leave is not in itself discriminatory
Workers who are dismissed during sick leave often claim to be discriminated on the grounds of their state of health. A dismissal is however not automatically discriminatory, just because of its timing.
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The Brussels Labour Court ruled that dismissing a worker during a sick leave does not automatically constitute discrimination on grounds of health or disability. The reason for dismissal may be for example the worker's behaviour during the sick leave.
Context
A worker is on long-term sick leave. At regular intervals, she fails to submit a medical certificate justifying the extension of her sickness.
The employer systematically reminds her to justify her absence with a medical certificate or to return to work immediately.
During a new period of unjustified sick leave, the employer sent her three successive registered letters, to which she never replied. The employer dismissed her for serious cause, considering her silence for more than 6 weeks to be an act of insubordination.
The worker took her case to the Brussels Labour Court. She argued that her dismissal was discriminatory because it was due to her health or disability. She claimed that the employer be condemned to pay her compensation equivalent to six months' gross salary.
Court decision
The Brussels Labour Court noted that the worker's main claim of discrimination was based on being dismissed during her sick leave. The Court held that this element alone doesn't give rise to a presumption of discrimination on grounds of health or disability.
The Court stated that “there is nothing abnormal (...) in an employer asking his workers who are unable to work (...) to cover each of their absences (...) and sending them reminders if they fail to do so. The fact that, after several reminders, the employer, having received no justification for his worker's absences, decides to dismiss her (...) does not constitute proof of a discriminatory practice”.
Therefore, the Court ruled that the worker's dismissal did not constitute discrimination on the grounds of health and/or disability.
To remember?
According to the Brussels Labour Court, it is obviously legitimate to ask a worker who is unable to work to justify his/her absence by providing a medical certificate. If the worker fails to do so and is dismissed for this reason, the dismissal is not discriminatory.
Source : Brussels Labour Court, 18 october 2023, R.G. n°2021/AB/468.