Occupational social security schemes (Chapter 2 of Directive 2006/54)

• Author: Nathalie Wuiame
• Pages: 43-45

43

6Occupational social security schemes (Chapter 2 of Directive 2006/54)

6.1General (legal) context

6.1.1Surveys and reports on the practical difficulties linked to occupational and/or

statutory social security issues

Nothing to report.

6.1.2Other issues related to gender equality and social security

Recently, there was a case concerning the refusal of an insurance firm to cover costs

related to gender reassignment for a worker engaged in a firm where an occupational

hospital care insurance scheme was available to employees. The individual insurance policy

which the insurance company proposed to the recruited employee included a clause under

which the employee had to waive any claim for reimbursement of hospital costs related to

her gender dysphoria, analysed as a chronic disease which had been diagnosed previous

to the conclusion of the contract; if the employee did not accept that clause, access to the

insurance would be denied. The employee objected, given that thanks to the reassignment

operation, she was cured from the disease, which consequently was not chronic, although

it could still entail hospital costs, e.g. for the replacement of a mammary prosthesis. Under

Article 4(2) of the Gender Act of 10 May 2007, any adverse treatment grounded on gender

reassignment is regarded as discrimination on the ground of sex, while discrimination in

an occupational social security scheme is prohibited under Articles 6(1)(4) and 12(1). In

succession, the labour tribunal in Brussels and the labour court in Brussels found that there

was discriminationon the ground of gender reassignment and ordered the insurance

company to give the employee access to the insurance scheme.

6.1.3Political and societal debate and pending legislative proposals

Nothing to report.

6.2Direct and indirect discrimination

The horizontal prohibition of discrimination is laid down in Article 19 of the Gender Act.

Articles 6(3) and 12 together deal with occupational social security schemes in a wording

that is extremely close to Article 9 of the directive.

6.3Personal scope

The personal scope is neither broader nor more restricted than Article 6 of Directive

2006/54. The Gender Act of 10 May 2007 has no specifically defined personal scope, but

applies to any person concerned by any object included in the material scope. However, in

respect of occupational social security schemes, certain provisions necessarily specify

whether they apply to paid or to self-employed workers.

6.4Material scope

The material scope is neither broader nor more restricted, as Article 12 of the Gender Act

of 10 May 2007 refers to Article 6(1)(4), which simply mentions ‘occupational social

security schemes.’ InBelgium, the whole statutory social security system is obligatory,

and as a result an occupational scheme may only complement the corresponding statutory

scheme (as stated in Article 45 of the Social Security (Paid Workers) Act of 27 June 1969).

Therefore, an occupational scheme may be aimed at meeting any of the items mentioned

in Article 7 of the directive.