From absenteeism to dismissal: a legal guide for employers

Rising absenteeism due to incapacity for work is a growing concern for many employers. Such absences can significantly disrupt the organisation and productivity of a business. Faced with prolonged or repeated absences, employers often find themselves questioning whether dismissing an employee on sick leave is a viable option. While dismissal of an employee on sick leave is permitted under Belgian law, it carries the risk of being challenged as discrimination based on health status. To mitigate this risk, employers frequently justify dismissal on the grounds of the "disruption" caused by the employee’s repeated absences.

A few years ago, case law generally accepted this justification, ruling out discrimination claims in such cases. However, recent rulings have become stricter, making it increasingly difficult for employers to substantiate claims of organisational disruption. Below, we provide practical guidance based on the latest developments of case law.

Two general criteria

To refute allegations of discriminatory dismissal, an employer must demonstrate compliance with two key criteria:

• The dismissal serves a legitimate purpose. In this context, the employer must prove that terminating the sick employee’s contract aimed to resolve the operational disruption caused by his absences. This entails showing that the absences genuinely hindered the smooth functioning of the company.
• The dismissal is a necessary and appropriate measure to achieve this legitimate purpose. The employer must demonstrate that no other solution—aside from dismissal—was sufficient to address the disruption.

Failure to provide evidence supporting these two elements exposes the employer to a penalty equivalent to six months’ salary, which may be reduced to three months if it can be established that the dismissal would have occurred regardless of any alleged discrimination.

The requirement for concrete and detailed evidence

Current case law meticulously assesses, on a case-by-case basis, whether the employer has provided concrete proof of organisational disruption. Below are key documents that can help minimise the risk of being sanctioned for discriminatory dismissal of an employee on sick leave:

• All medical certificates: Courts have recognised that multiple short absences can sometimes be more disruptive than long absences that are planned well in advance. The Bradford Factor* may be a useful tool in such cases, but it is not sufficient on its own to prove organisational disruption.
• Evidence of attempts to find a replacement: The use of temporary workers, fixed-term contracts, replacement contracts, or internal task reallocations are all significant factors considered by courts. Some roles are particularly difficult to replace, and in such cases, evidence such as rejection of job offers or correspondence with recruitment agencies regarding the search for a qualified worker can be useful.
• Adjustments to working hours: Proof that the employer had to reorganise work schedules to compensate for repeated absences strengthens the argument of organisational disruption.
• Increased workload for colleagues: This can be demonstrated through overtime records or cases where employees were unable to take leave.
• Complaints related to absences: Complaints from colleagues, clients, or management can serve as valuable evidence of disruption.
• Evidence of backlog and work delays: This may be reflected in internal complaints or statistical performance reports.
• Last-minute absence notifications: Employees who frequently inform their employer at the last minute about their absence is a factor contributing to organisational disruption according to courts.

In conclusion: a proactive approach always wins the day

Dismissing an employee on sick leave whose absences disrupt operations is, in principle, permitted. However, any employer considering such action must be aware of the potential risk of claims of discrimination based on health status. To mitigate this risk, it is crucial to compile a comprehensive, well-documented file demonstrating the extent of the organisational disruption. Thorough preparation and extreme caution before making a dismissal decision are now essential to avoid costly litigation and potential claims of discrimination.

Authors:
Thierry Duquesne and Zoé Harles

*The Bradford Factor is a calculation method of analysing worker absenteeism. The emphasis is placed on the frequency of absences rather than their duration.