Adults working in Belgium

EU-labour law and the protection of persons with disabilities

Many have heard of it: There are EU rules protecting persons with disabilities in the labour market. What do these rules actually entail? What are the legal principles which protect us as neurodivergent and other persons with disabilities? 

A legal overview – By Florian Sanden 

According to EU figures, among persons without disabilities, 74,8% are in employment compared to 50,6% of persons with disabilities. Among autists, the situation is far worse. Studies have shown that between 76% and 90% of autists are unemployed. These figures point to significant discriminatory barriers that prevent labour market integration.

In 2000 the European Union started addressing the problem by adopting pioneering new legislation on the protection against employment-related discrimination of persons with disabilities. Council directive 2000/78/EC established a general framework for equal treatment in employment and occupation. Being a directive, all EU member states had to transpose the new legislation into national law. The directive is thus applicable in the entire European Union, including Belgium. 

How does the directive protect persons with disability?

The EU-employment equality directive introduced two conceptual innovations to European labour law:
1. The principle of equal treatment.
2. the principle of reasonable accommodation. 

The principle of equal treatment

How is the principle of equal treatment defined? According to the directive, equal treatment is the absence of direct or indirect discrimination. Direct discrimination is taken to occur when one person is treated less favourably than another is in a comparable situation. Indirect treatment is taken to occur where an apparently neutral provision would put persons with a particular disability at a disadvantage. An example of direct discrimination would be the termination of a hiring process on the grounds of an employer discovering that the applicant is autistic or has ADHD although she or he has the same qualifications as the other applicants. An example of indirect discrimination could be a ban on working from home, although working from an office is not required for job-related tasks. If an employee is for instance autistic and cannot cope with the noise levels at work, such a rule would create a disadvantage. 

According to the directive, harassment against a person with a disability, defined as intimidating or hostile treatment, is deemed to be a form of discrimination. Instructing somebody else to discriminate against a person with a disability is deemed discrimination as well. 

Reasonable accommodation

A person with a disability must possess the qualifications required to fulfil her or his job-related tasks. Concerning all factors representing barriers for the disabled employee to apply his qualifications, the employer is obliged to provide support to remedy those barriers. According to the directive, employers shall take appropriate measures to enable a person with a disability to have access to participate in, advance in employment or undergo training. In the example cited above, the employer would be obliged to grant the autistic employee special permission to work from home or receive an individual office for example. 

The EU equality directive in Belgium

A review of the relevant legal documents has shown that Belgium transposed the EU directive very faithfully. All the concepts described before apply under Belgian labour law. What can you do if you feel an employer is discriminating against you or refusing reasonable accommodation? The Belgian government has installed an agency in charge of advising on such matters. It is called UNIA and can be reached at www.unia.be. Information is provided in French, Dutch, German and English.