The burden of proof in cases of dismissal
after incapacity for work
August 2021 – An employee is unable to work due to a miscarriage. On the day of her return, the employer dismisses her on the grounds that the company is reorganising. The employee goes to court, claiming that she was dismissed because she was unable to work due to the miscarriage.
Desire for a child
The young woman had previously communicated her desire to have children and did become pregnant after IVF treatment. According to a letter, the employer had already indicated at the time that he did not approve of a pregnancy because of the young age of the employee and the fact that a pregnancy would lead to annoying mood changes.
When the young woman reported in a letter that she had suffered a miscarriage and would be unable to work for some time, the lack of reaction from the company prompted the Liège Labour Court ruling on the case to react to the lack of respect or compassion shown by the employer.
Dismissal
The worker is dismissed on the date of her return to work. The employer gave as the reason a reorganisation and consolidation of various activities, so that her services would no longer be required.
However, the employee believes that she was not dismissed because of the reorganisation, but because of her desire to have a child and the resulting miscarriage/incapacity to work. If the desire for a child is the reason for her dismissal, this dismissal is discriminatory because it is based on gender.
The Labour Court of Liège, which had to rule on this case, considers that the burden of proof of this statement lies primarily with the worker. On the basis of various elements, including the exchange of letters, the employee managed to demonstrate that her desire for a child, her pregnancy and her miscarriage were indeed the real reasons for the dismissal.
It is important to note that the Court confirms that dismissal on the grounds of maternity, desire for a child, pregnancy and miscarriage or inability to work is tantamount to direct discrimination on the basis of gender, as only women can be in this situation.
The employer is still given the opportunity to show that other reasons came into play. However, the court found that the entrepreneur failed to prove that a reorganisation had actually taken place. On the contrary, it found that the employer was in fact very satisfied with his employee. The court awards the employee six months' compensation.
