Last Updated on February 9, 2021 by LawEuro
Information Note on the Court’s case-law 248
February 2021
Jurčić v. Croatia – 54711/15
Judgment 4.2.2021 [Section I]
Article 14
Discrimination
Unjustified, direct sex discrimination by refusing employment-related benefit to pregnant woman who underwent in vitro fertilisation shortly before employment: violation
Facts – The applicant entered into an employment contract ten days after she had undergone in vitro fertilisation (IVF). When she subsequently went on sick leave, on account of pregnancy-related complications, the relevant domestic authority re-examined her health insurance status. It concluded that, by signing the contract shortly after IVF, the applicant had only sought to obtain pecuniary advantages related to employment status and that her employment was therefore fictitious. Her application to be registered as an insured employee, along with her request for salary compensation due to sick leave, was accordingly rejected. She appealed unsuccessfully.
Law – Article 14 in conjunction with Article 1 of Protocol No. 1:
(a) Whether there was a difference in treatment
The applicant had been refused the status of an insured employee and an employment-related benefit, on grounds of employment which had been declared fictitious due to her pregnancy. Such a decision could only be adopted in respect of women. It therefore had constituted a difference in treatment on grounds of sex.
(b) Whether the difference in treatment was justified
The Government had argued that the decision to revoke the applicant’s insurance status had pursued the legitimate aim of protecting public resources from fraudulent use, and the overall stability of the healthcare system. The Court stressed that a woman’s pregnancy as such could not be considered fraudulent behaviour, and that the financial obligations imposed on the State during a woman’s pregnancy by themselves could not constitute sufficiently weighty reasons to justify difference in treatment on the basis of sex.
Even assuming that the Court had been generally prepared to accept the aim of the protection of public funds as legitimate, it had to be established whether the impugned measure had been necessary to achieve it, taking into account the narrow margin of appreciation afforded to States in cases where difference in treatment was based on sex.
Precisely because of the fact that the applicant had entered into new employment such a short time before seeking the employment-related benefit in question, the relevant administrative authority had initiated review of the applicant’s health insurance status, under suspicion that her employment agreement had been concluded only for her to be able to claim that benefit. Under the applicable legislation, the relevant authorities had been entitled to verify whether the facts on which an individual had based their health insurance status were still valid. However, such review in practice had frequently targeted pregnant women, and women who had concluded an employment contract at an advanced stage of their pregnancies or with close family members had automatically been put in the “suspicious” category of employees whose employment merited verification. Such an approach was generally problematic.
In the present case, the authorities had concluded that the applicant had been unfit to work on the date of concluding her contract because her doctor had recommended her rest, following her IVF ten days before. In particular, they had relied on the fact that the applicant had been expected to work at the employer’s headquarters, located far from her place of residence, and that travel in her condition might reduce her chances of a favourable outcome of the fertilisation. As a matter of principle, even where the availability of an employee was a precondition for the proper performance of an employment contract, the protection afforded to women during pregnancy could not be dependent on whether her presence at work during maternity was essential for the proper functioning of her employer, or by the fact that she was temporarily prevented from performing the work for which she had been hired. Moreover, introducing maternity protection measures was essential to uphold the principle of equal treatment of men and women in employment.
By concluding that, due to the IVF, the applicant had been medically unfit to take up the employment in question, the domestic authorities had implied that she had to refrain from doing so until her pregnancy had been confirmed. That conclusion had been in direct contravention to both domestic and international law. It had also been tantamount to discouraging the applicant from seeking employment due to her possible pregnancy.
The foregoing was sufficient to conclude that the applicant had been discriminated against on the basis of her sex. However, the Court found it necessary to point out some additional factors, which had made the difference in treatment even more striking:
– The applicant had regularly paid contributions to the compulsory health insurance scheme during her fourteen years of prior work experience. It could not thus be argued that she had failed to contribute to the insurance fund;
– When entering into her employment, the applicant had had no way of knowing whether the IVF procedure had been successful or whether it would result in her becoming pregnant. Moreover, she could not have known that her future pregnancy, if any, would have resulted in complications which would have required her to be issued sick leave for a prolonged period of time;
– When reviewing the applicant’s case, the authorities had failed to provide any explanation of how she could have consciously concluded a fraudulent employment contract, without even knowing whether she would actually become pregnant, particularly bearing in mind that she had not been under any legal obligation to report the fact that she had undergone the IVF procedure or that she might be pregnant while concluding the contract. Domestic law prohibited the employer from requesting any information concerning a woman’s pregnancy. Indeed, asking a woman information about her possible pregnancy or planning thereof, or obliging her to report such a fact at the moment of recruitment, would also have amounted to direct discrimination based on sex;
– The authorities had reached their conclusion in the applicant’s case without assessing whether she had ever actually taken up her duties and started performing her work assignments for the employer; nor had they sought to establish whether the IVF procedure she had undergone had necessitated her absence from work due to health reasons. There was also nothing to show that women who had undergone the IVF procedure would generally be unable to work during their fertility treatment or pregnancy;
– Finally, the Court expressed concern about the overtones of the domestic authorities’ conclusion, which had implied that women should not work or seek employment during pregnancy or possibility thereof. Gender stereotyping of that sort presented a serious obstacle to the achievement of real substantive gender equality, which was one of the major goals of the member States of the Council of Europe. Such considerations had not only been found to breach domestic law but had also been at odds with international gender equality standards.
(c) Overall
A refusal to employ or recognise an employment-related benefit to a pregnant woman based on her pregnancy amounted to direct discrimination on grounds of sex, which could not be justified by the financial interests of the State. The Court also noted a similar approach in the case-law of the Court of Justice of the European Union and in other relevant international standards. Accordingly, the difference in treatment to which the applicant, as a woman who had become pregnant through IVF, had been subjected, had not been objectively justified or necessary.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage.
(See also Napotnik v. Romania, 33139/13, 20 October 2020, Legal Summary)
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