The amendment introduces a prohibition of dismissal for reasons related to an employee’s absence due to an infertility treatment or a programme of medically assisted reproduction. The penalty for violating the prohibition is a lump-sum protection indemnity of six months’ gross salary. This protection against dismissal applies for two months starting from when the employer is informed of the absence through a medical certificate. In addition, the amendment adds ‘absence due to infertility treatment or a programme of medically assisted reproduction’ as a prohibited ground for discrimination under Belgium’s gender discrimination legislation, which provides for compensation of six months’ gross salary for violations.

This new protection is similar to maternity protection. As with maternity protection, an employer has the opportunity to prove that the dismissal was for reasons unrelated to an infertility treatment or a programme of medically assisted reproduction. However, if the employer fails to prove this, it must pay the protection indemnity. In addition, in analogy with maternity protection, the protection indemnity is cumulative with one or more indemnities based on discrimination legislation. For example, it is possible that an employer who dismisses an employee for reasons related to an absence for infertility treatment will be ordered to pay a lump-sum protection indemnity of six months’ gross wages, a lump-sum sex discrimination indemnity of six months’ gross wages, and a lump-sum indemnity of six months’ gross wages for discrimination based on another ground, such as health status.

However, there are also differences with maternity protection. While maternity protection applies from the time the employer is informed of the pregnancy until one month after the end of the post-natal rest period, this new protection against dismissal applies for two months starting from the time the employer is informed of the treatment through a medical certificate. Contrary to maternity protection, preparation of the dismissal during the period of protection is not further explicitly treated as an effective dismissal, and no sanction is provided for the non-renewal of a fixed-term employment contract. However, this could still be considered as a form of discrimination.

Now that the Belgian legislator has expressly recognised ‘absence due to infertility treatment or a programme for medically assisted reproduction’ as an absence protected against dismissal and a prohibited ground for discrimination, employers should take this into account when contemplating a dismissal. They especially need to keep in mind the possibility that the protection and damages indemnities will be added together in the event of a violation.

*Claeys & Engels