The Labour Court in Antwerp has decided on an important case regarding discrimination of persons suffering from diabetes, after the Centre for Equal Opportunities and Opposition to Racism in Belgium intervened in an appeal to a previous decision.
In 2008, a woman with type 1 diabetes applied to be a “container marker” at the harbour of Antwerp. She failed the medical screening because of an internal guideline which automatically excludes all candidates with diabetes type 1 from harbour work in general (regardless the type of function).
In 2009, the Centre for Equal Opportunities and Opposition to Racism in Belgium (CEOOR) issued a legal advice to the parties concerned, concluding that this categorical exclusion is not allowed under the Belgian Anti-discrimination Act. This advice referred also to the findings of Equinet’s Dynamic Interpretation Working Group (cf. European Anti-Discrimination Law in Practice III, Case 1). There were also references to relevant case law in Holland, France and Sweden.
In 2010, the Labour Tribunal decided that the general exclusion of persons with type 1 diabetes was justified in the light of the context of labour work and the general security risks. This gave a very broad interpretation to the exception of genuine occupational requirements.
The CEOOR intervened in appeal to try and ensure that the Belgian Anti-Discrimination Act and the 2000/78 Directive were correctly applied in this case. With success, the Labour Court followed the CEOOR’s reasoning. Persons with “stable” diabetes cannot be automatically excluded from harbour work in general. This has to be examined individually with regard to the specific employment.
As a result, the medical decision in the woman’s case is null and void, as well as the current internal guideline as such. The woman is entitled to damages equal to 3 months gross salary and she can apply again (as well as all other persons with diabetes type 1).