Repeated absences due to incapacity for work are a major issue for employers, who are often powerless in the face of their organisational consequences. Although a dismissal on the grounds of an employee’s state of health is, in principle, discriminatory, it may be accepted when the absences cause a proven disorganisation of the service. It then remains necessary to demonstrate this disorganisation, which is complex in practice.
In an attempt to objectify the impact of absenteeism, some employers use the Bradford factor. This tool measures the frequency and duration of absences in order to assess their effect on the company. However, case law remains cautious in this regard.
In a recent case brought before the Mons Labour Court, the employer had justified the dismissal of an employee on the basis of a high score on the Bradford factor. Its internal policy also provided that an employee exceeding twice the average was subject to dismissal for disorganisation of work.
In its judgment of 20 August 2025, the Court recognised that unforeseen or repeated absences undeniably disrupt the organisation of work. However, it considered that a mechanical application of the Bradford factor cannot constitute a valid basis for derogating from anti‑discrimination law. According to the Court, basing a dismissal solely on this score amounts to penalising the employee on account of his or her state of health. The employer was therefore ordered to pay six months’ remuneration in damages.
This position marks a break with the case law of 2017, when the same Court had accepted the use of the Bradford factor in the context of a reorganisation. The 2025 judgment thus clearly recalls that the Bradford factor cannot be used in isolation: it must be supplemented by concrete elements demonstrating an actual disorganisation caused by absenteeism.
In practice, the Bradford factor remains a useful but insufficient management tool. Its use must form part of a broader analysis, taking into account the operational reality and the constraints specific to the service.