Belgium: The consequences of cancer can constitute a disability

In a judgment of 20 February 2018, the Brussels Labour Court decided that the consequences of cancer can constitute a disability for employment law purposes. This ruling has important implications for employers, as failing to adapt working conditions for employees with cancer can now be considered discrimination.

Background

The worker, employed as a full-time salesperson, had reported to her employer that she had been diagnosed with a specific form of cancer (lymphoma). A long incapacity for work followed. Almost two years later, as she was getting better, her family doctor and the health insurance company medical officer both considered that a progressive return to work was feasible. The employee then asked for her working time to be adjusted. However, she was dismissed less than two weeks later.

The employee challenged her dismissal, invoking discrimination based on her employer refusing to implement reasonable adjustments to her working conditions. The Non-discrimination Act considers that the refusal to implement such adjustments in favour of a disabled person constitutes discrimination. The Act specifies that such adjustments are appropriate measures allowing a disabled person to access, take part and progress in the labour market, except if they create a disproportionate burden for the person who has to implement them.

The Labour Court’s conclusion

The Brussels Labour Court considered that, in view of the employee’s long-standing absence and of the limiting consequences that the cancer had on the employee’s capacity to work, it was indeed a disability, within the meaning of the broad definition given by the European Court of Justice.

Based on the employer’s obligations in terms of surveillance of the employee’s health, the Court considered that the employee could expect the employer to implement reasonable adjustments, for instance an adjusted workload and training to cope with the negative consequences of the disability. The employer, who replaced the employee, argued that the work methods had changed, and that he did not have enough work for more than one person. However, the Court did not accept this argument.

As a result, the Court considered that the dismissal constituted discrimination and ordered the employer to pay compensation equal to six months’ remuneration.

Action point

When an employee asks for adjustments to their work conditions after a long-term incapacity for work due to cancer, employers need to be careful when not granting such a request and should be able to prove that the reasonable adjustments requested by the employee would result in a disproportionate burden on the employer.