Protection against dismissal for employees undergoing fertility treatment

At a glance

• Employees who are undergoing fertility treatment currently have no protection against dismissal.
• However, on 5 February 2024, a political agreement was reached to change the related legislation.
• The new legislation will not provide extra leave to attend fertility treatment appointments, but it will provide a protection against dismissal.
• The legislation still requires the approval of the full assembly but it is likely to receive this in the coming weeks.

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Employees undergoing fertility treatment often need to attend appointments or treatments that can only be scheduled during regular working hours. Until recently, there was no specific law addressing this issue, so employees had to either take a day off as holiday leave or sick leave.

If an employer decided to dismiss an employee, there was no specific protection against dismissal. In most instances, a dismissed employee could argue that the dismissal was blatantly unfair according to collective bargaining agreement 109. However, this agreement is not always applicable, for example, during the first six months of employment.

On 5 February 2024, a political agreement was reached to change the relevant legislation.

The Labour Act of 16 March 1971 states that pregnant employees have the right to paid leave for medical examinations that cannot be scheduled outside of regular working hours. Although the initial proposal included a similar right for fertility treatment, this was not included in the text approved by the Committee for Social Affairs.

The current rules will still be used to justify absences.

However, the new legislation does provide a specific protection against dismissal. If an employee informs their employer about the fertility treatment and provides a medical certificate, the employer should not terminate the employment contract, unless there is a reason which is completely unrelated to the fertility treatment or the absences. The employee will also have the right to request a written explanation for the termination. The employer must then prove that there is no connection between the reasons for termination and the fertility treatment.

If the employer cannot prove that there is no connection, they will have to pay a protection indemnity equivalent to six months’ salary.

This protection is valid up to two months after the fertility treatment ends. Therefore, there could be situations where an employer is unsure whether the specific protection still applies.

The Act of 10 May 2007, which fights discrimination between women and men, provides the following protected criteria: ‘gender, pregnancy, medically assisted procreation, birth, breastfeeding, maternity, family responsibilities, gender identity, gender expression, sexual characteristics and medical or social transition’. The new legislation adds a further criterion, ie, absence related to fertility treatment.

Although the new text has been approved in the Committee for Social Affairs, it still needs to be approved by the full assembly. As all parties in the Committee were in favour of the draft Act, this will likely happen in the coming weeks. The new legislation will come into effect ten days after it is published in the Official Journal.