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

AuthorNathalie Wuiame
6 Occupational social security schemes (Chapter 2 of Directive 20 06/54)
6.1 General (legal) context
6.1.1 Surveys and reports on the practical difficulties linked to occupational and/or
statutory social security issues
Nothing to report.
6.1.2 Other issues related to gender equality and social security
Recently, there was a case concerning the refusal of an insurance fir m 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 Article s 6(1)(4) and 12(1). In
succession, the labour tribunal in Brussels and the labour court in Brussels found that there
was discrimination on the ground o f gender reassignment and ordered the insurance
company to give the employee access to the insurance scheme.
6.1.3 Political and societal debate and pending legislative p roposals
Nothing to report.
6.2 Direct and indirect discrimination
The horizontal prohibition of discrimination is laid down in Article 19 of the Gender Act.
Articles 6(3) and 12 tog ether deal with occupational social security schemes in a wording
that is extremely close to Article 9 of the directive.
6.3 Personal scope
The personal scope is neither broader nor more restricted than Article 6 of Directive
2006/54. The Gender A ct 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.
6.4 Material scope
The material scope is neither broader nor mo re restricted, as Article 12 of the Gender A ct
of 10 May 2007 refers to Article 6(1)(4), which simply mentions ‘occupational social
security s chemes.’ In Belgium, the whole statutory social s ecurity s ystem i s 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.

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