Discrimination on the basis of state of health
Being dismissed by your employer because he fears future absences due to illness; being refused insurance because of a previous illness; not being hired because you are not vaccinated against Covid... Discrimination on the basis of health can occur in different areas and take different forms.
What is discrimination based on state of health?
State of health refers to a person's previous state of health or medical history, their current state of diagnosed physical or mental illness and their future or reasonably foreseeable state of health.
The health conditions involved do not necessarily have to be long-term.
Note that chronic or degenerative illnesses, as well as certain psychological conditions, can legally be considered a disability. A right to reasonable accommodations then arises.
Examples of discrimination based on state of health
- A woman is denied outstanding balance insurance because of a kidney transplant she underwent 15 years ago.
- An applicant for the position of nurse, is refused the job because of a past history of hepatitis C.
- A person suffering from cancer is not allowed to follow a short-term training course due to their state of health.
- A worker who has been absent due to illness on several occasions receives a letter from his employer warning him against future absences: if he is absent again, he will be fired.
Discrimination on the basis of state of health in the law
The anti-discrimination legislation of the various entities in Belgium prohibits discrimination (whether direct, indirect, harassment, etc.) based on this criterion.
A distinction or difference in treatment based on this criterion may only be made if it is objectively justified by a legitimate purpose, provided that the means of achieving that purpose are appropriate and necessary. Otherwise, it constitutes discrimination.
Dismissal due to illness
Unfortunately, it is not uncommon for an employee to be dismissed following absence due to illness. Given that the law prohibits discrimination on the grounds of state of health, is this illegal?
A difference in treatment based on the person's state of health constitutes discrimination and is prohibited, except when:
- the employer can demonstrate that he did not act on the basis of the protected criterion (i.e. that the person was dismissed for a reason unrelated to his absence due to illness);
- the employer did act on the basis of the protected ground, but the dismissal served a legitimate purpose and was an appropriate and necessary measure to achieve the objective pursued. This can be done, for example, by proving that the employee's absence disrupted the business or jeopardised the correct organisation and continuity of the services.
It should be noted that the employer must demonstrate the alleged disorganisation and the negative consequences, as well as the fact that it was not possible to achieve the objective through measures that were less prejudicial to the righst of the worker in question , such as the use of temporary staff, a temporary reorganisation, etc…
Case law and testimonies
Please note that the below links to case law are only available in Dutch and/or French:
- Discriminatory dismissal: Brussels Labour Court (French-speaking), December 19, 2023
- Non-discriminatory dismissal: Brussels Labour Court (French-speaking), October 18, 2023
Find out more about discrimination
Discover the other protected criteriaPhysical characteristics
Discrimination because you have a dental problem or burns, for example.
Report discrimination
Do you feel you have experienced or witnessed discrimination? Report it online or call the toll-free number 0800 12 800 on weekdays between 9.30 a.m. and 1 p.m.