Last Updated on July 6, 2021 by LawEuro
Information Note on the Court’s case-law 253
July 2021
Gruba and Others v. Russia – 66180/09, 30771/11, 50089/11 et al.
Judgment 6.7.2021 [Section III]
Article 14
Discrimination
Entitlement to parental leave of male police personnel conditional upon lack of maternal care for their children: violation
Facts – Under domestic law, female and male police personnel are entitled to three years’ parental leave to take care of their minor children. However, for policemen this is conditional on their children having been left without maternal care. The applicants, policemen, were refused parental leave this condition having not been fulfilled and unsuccessfully brought proceedings before the domestic courts. They were also dismissed from their posts: three of them for systematic absences and the remaining one on health grounds.
Law – Article 14 in conjunction with Article 8: In the case of Konstantin Markin v. Russia [GC] the Court held that Article 14, taken together with Article 8, was applicable to parental leave and thus, if a State decided to create a parental leave scheme, it had to do so in a manner which was compatible with Article 14. In that case, the Court also found that men were in an analogous situation to women with regard to parental leave (as opposed to maternity leave) and parental-leave allowances. Accordingly, for the purposes of parental leave the applicants, policemen, had been in an analogous situation to policewomen. Although under domestic law policemen, unlike servicemen who were completely excluded from entitlement to parental leave, were entitled to apply for three years’ parental leave, this was subject to the condition that their children were left without maternal care. They were, thus, treated differently from policewomen who were unconditionally entitled to such leave. Consequently, it had to be ascertained whether this difference was objectively and reasonably justified. In doing so the Court examined the arguments advanced by the Russian Constitutional Court and the Government to justify this difference in treatment. In particular, and referring, inter alia, to its findings in the Konstantin Markin case, it found as follows:
– Gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners, could not be considered to amount to sufficient justification for a difference in treatment between men and women as regards entitlement to parental leave. That finding applied just as much to police personnel as to military personnel.
– The fact that the applicants had signed a police service contract could not constitute a waiver of their rights not to be discriminated against. In view of the fundamental importance of the prohibition of discrimination on grounds of sex, no waiver of the right not to be subjected to discrimination on such grounds could be accepted as it would be counter to an important public interest.
– Although maintaining the operational effectiveness of the police was a legitimate aim that might justify certain restrictions on police personnel rights, it could not justify a difference in treatment between male and female personnel. In particular, the Court was not persuaded that the exclusion from entitlement to parental leave in the present case could be regarded as having been based on an inherent requirement of police service. Firstly, policewomen were unconditionally entitled to parental leave and the restriction only concerned policemen. Secondly, entitlement to parental leave depended on the sex of the police personnel rather than on their position in the police, the availability of a replacement or any other circumstance relating to the operational effectiveness of the police. Thirdly, there had been no restrictions on grounds of sex for holding the posts equivalent to the applicants’ posts. Yet, policewomen holding those posts, unlike the applicants, had an unconditional entitlement to three years’ parental leave. Fourthly, and most importantly, the domestic authorities in their decisions refusing the applicants’ parental leave had not referred to any circumstances showing that their temporary departure on parental leave would have undermined the operational effectiveness of the police. The circumstances of the present case showed the difficulties a policeman might encounter even in cases where his particular family situation required him to assume the role of the primary caregiver for his child and that the exception to the rule that policemen were not entitled to parental leave appeared to be interpreted strictly. More specifically, two of the applicants had been refused parental leave despite the fact that their wives had not been fully able to take care of the children on account of health issues. The authorities therefore had failed to perform any balancing exercise between the legitimate interest in ensuring the operational effectiveness of the police, on one hand, and on the other, the applicants’ right not to be discriminated against on grounds of sex as regards access to parental leave.
In view of the above, the difference in treatment between policemen and policewomen as regards entitlement to parental leave could not be said to be reasonably and objectively justified. There was no reasonable relationship of proportionality between the legitimate aim of maintaining the operational effectiveness of the police and the contested difference in treatment. The applicants had therefore been subjected to discrimination on grounds of sex.
Conclusion: violation (unanimously)
The Court also found a violation of Article 6 § 1 of the Convention in respect of the applicant in application no. 22165/12 in that the principle of equality of arms had not been respected.
Article 41: In respect of pecuniary damage: EUR 1,196 to the applicant in application no. 50089/11 and remaining applicants’ claim dismissed. In respect of non-pecuniary damage: EUR 7,500 to each applicant in applications nos. 66180/09 and 50089/11, EUR 1,000 to the applicant in application no. 30771/11 and EUR 5,500 to the applicant in application no. 22165/12.
(See also Konstantin Markin v. Russia [GC], 30078/06, 22 March 2012, Legal Summary)
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