Employers publicly reproved for discriminating

Employers publicly reproved for discriminating against disabled employees

Discrimination on the grounds of chronic illness or disability is prohibited by law. The Dutch Equal Treatment Act (WGB) has been extended to cover this.

Anyone who feels that they have been unfairly treated with respect to work, profession, professional education or public transport due to a disability or chronic illness can exercise their rights under the WGB. The Equal Treatment Commission (CGB) investigates any complaints relating to such issues.

The law prohibits any direct or indirect discrimination on the grounds of disability or chronic illness, including with respect to work. According to the new act, work includes recruitment and selection, entry into an employment contract, dismissal, employment agency services, employment conditions, promotion and training. The act explicitly states that the employer retains the freedom to select the most suitable candidate. Discrimination is only permitted in a limited number of situations. Firstly, where the risks to the safety and health of the disabled person himself and the other people involved are too great. Secondly, when providing special facilities for people with a disability or chronic illness, for example a special parking place. ‘Positive action’ measures, also known as a preference policy, are also permitted.

In some cases, adjustments may need to be made to allow someone with a disability or chronic illness to participate equally in work or education. Such adjustments may be of a physical nature (such as levelling surfaces) or otherwise (for example, different working hours). Adjustments must not place an unreasonable burden on the person required to make them, which is often the employer. The CGB has said that it will weigh up the opposing interests of the organisation or institution on the one hand and the disabled or chronically ill individual on the other hand in every case presented to it. In this process, it will also take account of such factors as the size of the organisation or institution and the duration of the employment relationship.

Analysis

There’s no doubt that the reintegration of people with a disability into the employment market is a hot topic. A wide range of legislation exists promoting the reintegration of disabled employees. The changes to the law mean that a disabled employee who feels he has been badly treated by his employer has a good chance of success if he complains to the CGB about his employer. In practice it has become clear that the CGB’s findings often go against the employer and in the overwhelming majority of cases the sub-district court’s decisions follow the CGB. A decision by the CGB condemning the employer’s actions can lead to significantly higher compensation, for example on termination of the employment contract.