4.1. Employment – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Under EU law, protection against discrimination in the field of employment is extended across all the protected grounds provided for under the non- discrimination directives. It covers access to employment, conditions of employment, including dismissals and pay, access to vocational guidance and training, and worker and employer organisations.

The concept of ‘access to employment’ under the non-discrimination directives has been interpreted widely by the CJEU. It applies to a person seeking employment,[270] and also in regard to the selection criteria[271] and recruitment conditions[272] of that employment.[273]

Example: In Meyers v. Adjudication Officer,[274] the CJEU held that access to employment covers “not only the conditions obtaining before an employment relationships comes into being”, but also all those influencing factors that need to be considered before the individual makes a decision of whether or not to accept a job offer. Therefore, the granting of a particular state benefit (payable depending on level of income) was capable of falling in this area. This was because the candidate would be influenced by whether they would be entitled to this benefit when considering their decision to take up a post. Consequently, such a consideration had an impact on access to employment.

Example: In Schnorbus v. Land Hessen,[275] the complainant applied for a training post as part of her qualification to join the judiciary. Under national law, it was necessary to pass a national exam, followed by a period of training and a second exam. The complainant had passed the first exam, but was refused a training post on the grounds that there were no vacancies. Her entry was consequently delayed until the next round of posts became available. The complainant argued that she had been discriminated against because priority was accorded to male candidates who had completed their military service. The CJEU found that national legislation regulating the date of admission to the training post fell within the scope of ‘access to employment’ since such a period of training was itself considered as ‘employment’ both in its own right and as part of the process of obtaining a post within the judiciary.

Example: In Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării,[276] concerning homophobic remarks made by financial patron of a football, the CJEU held that the Employment Equality Directive applies to statements concerning the recruitment policy of the club even though there was no actual recruitment procedure open and there was no identifiable complainant who claims to have been the victim of discrimination.[277]

Similarly, in interpreting what falls within the conditions of employment, the CJEU has applied a rather broad interpretation. This has ultimately led to any condition derived from the working relationship to be considered as falling within this category.

Example: In Meyers v. Adjudication Officer,[278] the applicant, a single parent, complained of indirect sex discrimination due to the method used for calculating the eligibility of single parents for family credit. It fell to the CJEU to clarify whether the provision of family credit (a state benefit) was solely a social security issue, or whether it constituted a condition of employment, an important factor in determining this consideration. The CJEU took into consideration that the family credit in question was payable when the following three conditions were satisfied: the income of the claimant does not exceed a specified amount; the claimant or their partner was working; the claimant or their partner had responsibility for a child. The CJEU held that the Equal Treatment Directive (now replaced by the Gender Equality Directive (recast)) would not be considered inapplicable solely because the benefit in question formed part of a social security system. Instead, a wider approach was adopted looking at whether the benefit was given in connection to a working relationship. In this case, to benefit from the family credit system, the applicant had to establish that either they, or their partner, were engaged in remunerative work. This requirement to establish a working relationship brought the family credit system within the category of a working condition.

Applying such a wide definition to the concept of employment and working conditions led the CJEU to find that the provision of workplace nurseries;[279] the reduction of working time,[280] the conditions for granting parental leave[281] also fell within its ambit.

The CJEU has also adopted a fairly inclusive approach to the issues of dismissals and pay. In relation to the ambit of dismissals, this covers almost all situations where the working relationship is brought to an end. This has been held to include, for example, where the working relationship has been brought to an end as part of a voluntary redundancy scheme,[282] or where the relationship has been terminated through compulsory retirement.[283]

Example: In Riežniece v. Zemkopības ministrija and Lauku atbalsta dienests,[284] the claimant, a civil servant, had been dismissed after taking parental leave. The official reason for dismissal was the suppression of the applicant’s post. The CJEU ruled that the method for assessing workers in the context of the suppression of a post must not place workers who have taken parental leave in a less favourable situation than other workers. The CJEU concluded that there had been indirect discrimination because parental leave is taken by a higher proportion of women than men.

The concept of pay has been defined in Article 157 of the Treaty of the Functioning of the EU as being the “ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer”. This covers a wide variety of benefits that a worker receives due to having entered a working relationship. The ambit of this definition has been considered in a range of cases before the CJEU, and this has been held to cover all benefits associated with a job, including concessionary rail travel,[285] expatriation allowances,[286] Christmas bonuses,[287] and occupational pensions,[288] taking account of periods of military service,[289] and continued payment of wages in the event of illness.[290] What one is essentially looking for in determining whether the issue falls within the term ‘pay’ is some form of benefit, which is derived from the existence of a working relationship.

Example: In Jürgen  Römer  v.  Freie  und  Hansestadt  Hamburg,[291] the complainant worked for the City of Hamburg as an administrative employee until he became incapacitated for work. After he entered a civil partnership with his long-term partner, he requested his supplementary retirement pension to be recalculated on the basis of a more favourable tax deduction category available for married couples. The competent administration refused on the ground that the applicant was not married but in a registered partnership. The CJEU confirmed that supplementary retirement pensions such as those paid to the complainant constitute pay. Consequently, if a Member State has a registered partnership putting same-sex couples into a legal position comparable to married couples, exclusion from marriage benefits constitutes direct discrimination. Protection of marriage and the family as such, cannot serve as valid justification for such discrimination. The CJEU ruled that same-sex couples must have access to employment, benefits including the right to retirement pensions granted to married couples.

Example: In the case of C.,[292] concerning supplementary tax on income from a retirement pension, the CJEU pointed out that the meaning of ‘pay’ should be interpreted broadly within the scope of the Employment Equality Directive (2000/78). The CJEU stressed that the notion of ‘pay’ covers any benefit that the employee receives in respect to their employment. The concept of ‘pay’ is also independent of whether it is received under a contract of employment, by virtue of legislative provisions, or on a voluntary basis. It might also include benefits that are paid after the termination of employment or to ensure that a worker receives income even where they are not performing any work. However, the CJEU held that tax on retirement pension income is external to the employment relationship and, therefore, does not fall within the scope of the Employment Equality Directive and Article 157 of the TFEU. It directly and exclusively derives from national tax legislation, applicable to a certain category of persons as specified in relevant tax provisions.

Example: In Frédéric Hay v.Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres,[293] the CJEU considered that benefits envisaged for employees on the occasion of their marriage form a part of an employee’s pay. The claimant, a homosexual man in a relationship with another man, had been refused the benefit on the ground that he did not fulfil the condition of getting married, a requirement for obtaining it. The CJEU found that the difference in treatment between married persons and those in a civil partnership amounted to discrimination based on sexual orientation.

The definition of ‘vocational guidance and training’ has received attention from the CJEU in the context of free movement of persons.[294] The CJEU has adopted a broad interpretation of this term.

Example: In Gravier v. City of Liège,[295] a student who was a French national wished to study strip cartoon art at the Académie de Beaux-Arts in Liège. The complainant was charged a registration fee, whereas students from the host state were not. The CJEU stated that vocational training includes: “any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment …, whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education”.

Example: The above definition of vocational training was applied in Blaizot v. University of Liège and Others,[296] where the complainant applied for a course to study veterinary medicine. The CJEU found that in general a university degree will also fall within the meaning of ‘vocational training’ even where the final qualification awarded at the end of the programme does not directly provide for the qualification required of a particular profession, trade or employment. It was sufficient that the programme in question provides knowledge, training or skills required within a particular profession, trade or employment. Thus, where particular trades do not require a formal qualification, or where the university degree does not of itself constitute the formal entry requirement to a profession, this will not prevent the programme being regarded as ‘vocational training’. The only exceptions to this are “certain courses of study, which of their particular nature, are intended for persons wishing to improve their general knowledge rather than prepare themselves for an occupation”.

Example: In J.J. de Lange v. Staatssecretaris van Financiën[297] (discussed in Section 5.5), the CJEU ruled that the tax treatment of vocational training costs incurred by a person may affect the actual accessibility to such training.

In this case, the right to deduct the costs of vocational training from their taxable income differed, depending on age. The CJEU left it to the national court to determine if the national legislation was necessary to attain the objective of promoting the position of young people in the labour market.

Under EU law, the prohibition of discrimination also applies in relation to worker and employer organisations. This does not only deal with membership and access to a worker or employer organisations, but it also covers the involvement of persons within these organisations. According to guidance issued by the European Commission, this aims to ensure that discrimination is removed as regards membership or benefits derived in the context of these bodies.[298]

As regards pregnancy and maternity related discrimination, please see Section 5.1.

The national courts also interpret the prohibition of discrimination in the field of employment widely.

Example: In a case from the Former Yugoslav Republic of Macedonia,[299] an employer decided not to extend the contract of an employee, nor to offer her a new one, after he discovered that she was pregnant. The domestic court held that this constituted discrimination owing to pregnancy.

Example: In a case from Poland,[300] the complainant was an English teacher of Ukrainian nationality. She had been employed for over 12 years in a Polish school on the basis of a number of definite duration contracts, unlike some other teachers who were employed under indefinite duration contracts. The school authorities argued that the reason for offering fixed-term contracts was, among others, the limited duration of her residence permits. The Supreme Court noted that prohibition of discrimination covered all stages of employment, including this type of employment contract. It stated that this differential treatment, if it resulted only from Ukrainian nationality and residence permits, constituted discrimination on grounds of nationality.

Although the ECHR does not guarantee a right to employment, Article 8 has been interpreted as covering the sphere of employment under certain circumstances. In Sidabras and Džiautas v. Lithuania,[301] a government ban on former KGB agents accessing employment in the public sector and parts of the private sector was held to fall within the ambit of Article 8 in conjunction with Article 14. Namely, it “affected their ability to develop relationships with the outside world to a very significant degree and has created serious difficulties for them in terms of earning their living, with obvious repercussions on the enjoyment of their private lives”.[302] Similarly in Bigaeva v. Greece, it was held that Article 8 can also apply in the sphere of employment, such as in the context of access to a profession.[303]

Example: In I.B. v. Greece,[304] the applicant had been dismissed from his job, following complaints by staff members that he was HIV-positive. The ECtHR found that issues concerning employment and situations involving persons with HIV came within the scope of private life, and held that the applicant’s dismissal had been in breach of Article 14 of the Convention taken in conjunction with Article 8. The ECtHR based its conclusion on the fact that the Court of Cassation had failed to adequately explain how the employer’s interests in maintaining a harmonious working environment had prevailed over those of the applicant. In other words, it had failed to balance the competing interests of the applicant and the employer in a manner required by the Convention.

The ECtHR has also prohibited discrimination on the basis of membership of a trade union. The right to form trade unions is guaranteed as a stand-alone right in the ECHR.[305]

Example: In Danilenkov and Others v. Russia, [306] the applicants had experienced harassment and less favourable treatment from their employer on the basis of their membership in a trade union. Their civil claims before the

national courts were dismissed, since discrimination could only be established in criminal proceedings. However, the public prosecutor refused to bring criminal proceedings because the standard of proof required the state to show ‘beyond reasonable doubt’ that discrimination had been intended by one of the company’s managers. The ECtHR found that the absence of effective judicial protection of freedom of association for trade unions in national law amounted to a violation of Article 11 in conjunction with Article 14.

Under the ESC, Article 1 (2) requires that national legislation prohibits any discrimination in employment, inter alia on grounds of sex, race, ethnic origin, religion, disability, age,[307] sexual orientation and political opinion, including on grounds of conscientious objection or non-objection.[308] Discrimination is prohibited regarding recruitment or employment conditions in general (in particular, remuneration, training, promotion, transfer and dismissal or other detrimental action).[309] There must be adequate legal safeguards against discrimination in regard to part-time work. In particular, there must be rules to prevent non-declared work through overtime, and equal pay, in all its aspects, between part-time and full-time employees.[310]

Article 4 (3) of the ESC guarantees the right to equal pay for work of equal value without discrimination on grounds of sex. Article 20 of the Charter also concerns matters of employment and occupation without discrimination on grounds of sex, including pay. Article 27 of the ESC aims at ensuring that all persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.

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270. CJEU, C-415/10, Galina Meister v. Speech Design Carrier Systems GmbH, 19 April 2012.

271. CJEU, C‑317/14, European Commission v. Kingdom of Belgium, 5 February 2015.

272. CJEU, C-416/13, Mario Vital Pérez v. Ayuntamiento de Oviedo, 13 November 2014.

273. Racial Equality Directive, Art. 3 (1) (a); Employment Equality Directive, Art. 3 (1) (a); Gender Equality Directive (recast), Art. 1 and 14 (1) (a).

274. CJEU, C-116/94, Jennifer Meyers v. Adjudication Officer, 13 July 1995.

275. CJEU, C-79/99, Julia Schnorbus v. Land Hessen, 7 December 2000.

276. CJEU, C-81/12, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, 25 April 2013.

277. See also CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008.

278. CJEU, C-116/94, Jennifer Meyers v. Adjudication Officer, 13 July 1995.

279. CJEU, C-476/99, H. Lommers v. Minister van Landbouw, Natuurbeheer en Visserij, 19 March 2002.

280. CJEU, C-236/98, Jämställdhetsombudsmannen v. Örebro läns landsting, 30 March 2000.

281. CJEU, C-222/14, Konstantinos Maïstrellis v. Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton, 16 July 2015.

282. CJEU, Case 19/81, Arthur Burton v. British Railways Board, 16 February 1982.

283. CJEU, C-411/05, Félix Palacios de la Villa v. Cortefiel Servicios SA [GC], 16 October 2007.

284. CJEU, C-7/12, Nadežda Riežniece v. Zemkopības ministrija and Lauku atbalsta dienests, 20 June 2013.

285. CJEU, Case 12/81, Eileen Garland v. British Rail Engineering Limited, 9 February 1982.

286. CJEU, Case 20/71, Luisa Sabbatini, née Bertoni, v. European Parliament, 7 June 1972.

287. CJEU, C-333/97, Susanne Lewen v. Lothar Denda, 21 October 1999.

288. CJEU, C-262/88, Douglas Harvey Barber v. Guardian Royal Exchange Assurance Group, 17 May 1990.

289. CJEU, C-220/02, Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v. Wirtschaftskammer Österreich, 8 June 2004.

290. CJEU, C-171/88, Ingrid Rinner-Kühn v. FWW Spezial-Gebäudereinigung GmbH & Co. KG, 13 July 1989.

291. CJEU, C-147/08, Jürgen Römer v. Freie und Hansestadt Hamburg [GC], 10 May 2011.

292. CJEU, C-122/15, C., 2 June 2016.

293. CJEU, C-267/12, Frédéric Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, 12 December 2013. See Section 2.1.2.

294. According to Art. 7 (3) of Regulation 1612/68 on freedom of movement of workers within the Community, a worker shall “have access to training in vocational schools and retraining schools” without being subject to less favourable conditions when compared to national workers (OJ L 271, 19.10.1968, p. 2).

295. CJEU, Case 293/83, Françoise Gravier v. City of Liège, 13 February 1985.

296. CJEU, Case 24/86, Vincent Blaizot v. University of Liège and Others, 2 February 1988.

297. CJEU, C-548/15, J.J. de Lange v. Staatssecretaris van Financiën, 10 November 2016.

298. Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM (1999) 566 final, 25.11.1999.

299. The Former Yugoslav Republic of Macedonia, Primary Court II Skopje, I RO No. 618/15, 3 March 2016, Source: European Equality Law Review (2016), vol. 2, p. 97.

300. Poland, Polish Supreme Court, III PK 11/16, 7 November 2016; the court quashed the judgment and remitted the case to determine if the reasons for concluding definite contracts were discriminatory.

301. ECtHR, Sidabras and Džiautas v. Lithuania, Nos. 55480/00 and 59330/00, 27 July 2004, discussed in Section 6.4.

302. Ibid., para. 48.

303. ECtHR, Bigaeva v. Greece, No. 26713/05, 28 May 2009.

304. ECtHR, I.B. v. Greece, No. 552/10, 3 October 2013.

305. For example, ECtHR, Demir and Baykara v. Turkey [GC], No. 34503/97, 12 November 2008.

306. ECtHR, Danilenkov and Others v. Russia, No. 67336/01, 30 July 2009.

307. ECSR, Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 74/2011, Decision on the merits of 2 July 2013, paras. 115-117.

308. ECSR, Confederazione Generale italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013, Decision on the merits of 12 October 2015, para. 238; ECSR, Conclusions 2006, Albania; ECSR, Conclusions 2012, Iceland, Moldova and Turkey.

309. ECSR, Conclusions XVI-1 (2002), Austria.

310. ECSR, Conclusions XVI-1 (2002), Austria.

Contents

4. Selected areas of protection

4.1. Employment

4.2. Access to welfare and social security

4.3. Education

4.4. Access to supply of goods and services, including housing

4.5. Access to justice

4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage

4.7. Political participation: freedom of expression, assembly and association, and free elections

4.8. Criminal law matters

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