In a judgment of 20 June 2019 (C-404/18), the Court of Justice ruled that witnesses of discrimination are not sufficiently protected by Belgian legislation on discrimination.
The underlying case concerned a shop manager who had raised with the management that their refusal to hire a pregnant woman, although she was a suitable candidate, was contrary to the anti-discrimination provisions of the gender law of 2007. The shop manager informed the pregnant candidate that her application was rejected because of her pregnancy, and the latter lodged a complaint with the Belgian Institute for the Equality of Women and Men. The shop manager’s employment contract was later terminated.
Both the candidate’s case and the shop assistant’s case came before the Labour Court of Antwerp, which on the one hand ruled that the candidate was indeed the victim of discrimination, but on the other hand, had to establish that the actions of the shop manager could not rely on the protection against retaliatory measures of art. 22, §9 of the gender law, as she could not submit a signed and dated document (formal complaint) relating to her testimony, as required by art. 22, §3 of the gender law. For this reason, the Labour Court asked the Court of Justice whether these formal conditions are in conformity with Article 24 of Directive 2006/54 on equal opportunities and equal treatment of men and women in matters of employment and occupation.
The Court of Justice recalls that Article 24 of the Directive requires Member States to take the necessary measures to ensure that workers, including workers’ representatives, are protected against dismissal or other adverse treatment by the employer in response to a complaint within the undertaking, or to any procedure designed to ensure compliance with the principle of equal treatment. Furthermore, the Court observes that a worker defending or giving evidence on behalf of a victim of discrimination should be entitled to the same protection as the protected person, even after the employment relationship has ended. According to the Court, the effectiveness of protection against discrimination on grounds of sex is not ensured if that protection does not extend to measures which an employer may take against employees who, formally or informally, have defended or testified on behalf of the protected person. Otherwise, workers, who are best placed to defend the victims, are discouraged from standing up for that person for fear of not being protected if they do not comply with certain formal requirements. The Belgian system is therefore too strict and does not provide sufficient protection for the witness, as required in order to be in conformity with EU law.