Can dismissals be justified based on Covid-19?

Can an employer dismiss an employee if the employee has tested positive for Covid-19 and refuses to wear a mask at work or if the employer has experienced a significant drop in revenue due to the crisis?

According to one study, dismissals due to bankruptcy, gross misconduct and (medical) force majeure have declined considerably since the start of the Covid-19 pandemic, mainly due to government measures such as temporary unemployment. Now, however, as these measures are being eased, there is a gradual resumption of economic activity, despite a generally difficult context. This return to work could be followed by dismissals with notice or severance. However, it should be noted that the notice period will not run if the performance of the employment contract is suspended due to Covid-19.

In Belgium, employers are generally free to run their business as they see fit and may choose be-tween reasonable management alternatives. When an employer decides to dismiss an employee, however, this right cannot be exercised recklessly or disproportionately. Employers must comply with Collective Bargaining Agreement No 109 on the justification for dismissals.

In order not to be considered unreasonable, a dismissal must be based on (1) the employee's skills or qualifications, (2) the employee's behaviour, or (3) the company's organisational needs.

If, at the employee’s request, the employer fails to provide conclusive evidence that the dismissal is related to the employee's skills/qualifications or behaviour or the employer’s business needs, the employee can initiate legal proceedings, in which case the employer could be ordered to pay a civil fine of 2 weeks’ remuneration and damages of 3 to 17 weeks’ remuneration.

In the current context, the question arises as to whether an employer can reasonably justify the dismissal of an employee based on Covid-19. The answer is not always clear-cut.

1. Dismissal due to the effects of Covid-19 on the employee's qualifications or ability to work

In this scenario, there are two possibilities:

• The infected employee is on sick leave.

The dismissal of an employee on sick leave is not per se prohibited or wrongful. However, if the employee is dismissed with notice, the notice period will only start to run when the employee returns to work, whereas if the employee is dismissed with severance, the termination can be immediately effective.

It should noted that illness cannot be cited as the reason for the employee's dismissal as Belgian law prohibits discrimination in labour relations based on an individual's current or future state of health. If the termination is found to be discriminatory, the employer will be ordered to pay, in addition to the employee's regular severance package, compensation equal to 6 months’ pay.

• Due to side effects of Covid-19, the infected employee is no longer able to perform the em-ployment contract properly.

Since the employee is protected from discrimination due to his or her current or future state of health, the employer will have to consider adapting the employee's duties, in consultation with the company or attending physician, and possibly a reintegration scenario in the case of an extended period of incapacity.

2. Dismissal due to the employee's behaviour in relation to Covid-19

• The employee refuses to wear a mask at work or to comply with social distancing measures.

According to the legislation on well-being at work, an employer is obliged to take necessary and col-lective measures to reduce the risks to which its employees are exposed and to protect their health or to be proactive in this regard

Likewise, pursuant to the Employment Contracts Act, employees are generally obliged to refrain from engaging in acts that could endanger their own safety or that of their coworkers, the employer or third parties.

Thus, it could be conceivable for an employer that has imposed compliance with clear and objective health and safety rules within the company to sanction an employee for inappropriate behaviour in relation to these rules. An intentional breach of the rules could be considered conduct that endangers the health and safety of others and that relates to the employee's behaviour.

• The employee knows that (s)he is infected and contagious but continues to come to work without informing his or her superiors or coworkers.

The employee could infect his or her coworkers and harm the proper functioning of the company by disrupting the organisation of work, causing an increase in incapacity and triggering an obligation for the employer to pay guaranteed wages.

In this case, the employer could consider termination for gross misconduct due to the employee's reckless attitude, rather than his or her state of health. The difficulty will lie in meeting the burden of proof, which in this case is borne by the employer.

3. Dismissal due to the effects of Covid-19 on the employer's business

An employer may dismiss an employee if it can demonstrate that Covid-19 has caused economic difficulties for the company or resulted in technological changes or the need for a reorganisation. Such difficulties can be proven by, for example, a significant reduction in orders or turnover com-pared to the same period the preceding year.

An employer that decides to terminate several employees for economic or technical reasons due to Covid-19 should ensure that the terminations do not constitute a collective dismissal, as defined by law. In the event of a collective dismissal, a particular procedure must be followed, entailing the pro-vision of information to and consultation with the employees and their representatives. The employer may also have to pay a supplementary allowance.

In conclusion, an employee's state of health cannot constitute grounds for dismissal, but failure to comply with objective health and safety rules established by the employer or economic difficulties due to Covid-19 could be valid grounds for dismissal.

However, the employer should ensure that it has concrete evidence justifying the dismissal, in order to avoid being ordered to pay compensation for clearly unreasonable termination. This risk can be resolved by concluding a settlement agreement with the employee, pursuant to which the employee waives his or her right to raise any claims against the employer.

If you have any questions in relation to this blog, please do not hesitate to contact:

• Philippe François, philippe.francois@nautadutilh.com, +32 2 566 85 14
• Thierry Duquesne, thierry.duquesne@nautadutilh.com, +32 2 566 85 12
• Diane de Mûelenaere, diane.demuelenaere@nautadutilh.com, + 32 2 566 89 27

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