Equal Treatment In Employment Research Articles

The role of the Court in modelling the standard of equal treatment in employment: Analysis of the judgment of the Court of Justice in case C-344/20

The aim of this commentary is to analyse the judgment of the Court of Justice in L.F. v. S.C.R.L., in which the Court analysed provisions of the Equal Treatment Directive (2000/78) in light of the general prohibition of discrimination on the grounds of religion or belief. The main proceedings in the case analysed concerned a Muslim woman who wore an Islamic headscarf and was doing an office internship at S.C.R.L., a cooperative limited liability company. Due to the neutrality policy at work, she was unable to manifest her religion and brought an action for a prohibitory injunction before a domestic court. In preliminary ruling, the Court decided that she was not a victim of discrimination. The F.L. judgment is a continuation of the Court’s line of judicial decisions in cases G4S and WABE referred to before. The article analyses the current case law of the CJEU and ECHR that touches on the problem of the expression of religious belief and seeks the answer to the question: Which value is more important to be protected in contemporary European society – the identity of the person or the freedom to conduct a business?

Equal Treatment in Employment as an Imperative of Human Resource Management in Polish Conditions

The most important fchallenges aced by modern organizations in the context of people management include: managing organizational change, managing equality and diversity in the workplace, as well as maintaining employee loyalty and commitment. For the purposes of this study, one of these challenges, namely equal treatment in employment, has been identified as a key area.

Zakaz dyskryminacji ze względu na orientację seksualną w zatrudnieniu niepracowniczym – regulacja ustawy z 3 grudnia 2010 r. o wdrożeniu niektórych przepisów Unii Europejskiej w zakresie równego traktowania a unijny standard ochrony

The subject of the article is an analysis of the solutions adopted in Polish legislation in the field of protection against discrimination based on sexual orientation by concluding a non-employment contract for the provision of services. In particular, it aims to confront the provisions of the Act of 3 December 2010 on the implementation of certain provisions of the European Union regarding equal treatment with the regulation of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. A detailed analysis of the content of the directive, taking into account its interpretation of the CJEU in the preliminary ruling (C-356/21) issued on 12 January 2023, leads to the conclusion that the Equal Treatment Act implements the provisions of the directive improperly, and the standard of protection against discrimination on the basis of sexual orientation provided by the Polish legislator is lower than required by EU law.

Collective Rights of Persons Engaged in Gainful Employment Outside the Employment Relationship – en Outline of the Issue

The main objective of the following study is to introduce readers to the issue of the 2nd National Scientific Conference in the series “Atypical Employment Relations” organized on 3 October 2019 by the Centre for Atypical Employment Relations of the University of Lodz. The consequence of extending the right of coalition to persons performing paid work outside the employment relationship was that they were guaranteed important collective rights, which until 1 January 2019 were reserved primarily for employees. The rights which Polish legislator ensured to non-employees include the right to equal treatment in employment due to membership in a trade union or performing trade union functions; the right to bargain with a view to the conclusion of collective agreement and other collective agreements; the right to bargain to resolve collective disputes and the right to organize strikes and other forms of protest, as well as the right to protect union activists. The author positively assesses the extension of collective rights to people engaged in gainful employment outside the employment relationship, noting a number of flaws and shortcomings of the analyzed norms. The manner of regulating this matter, through the mechanism of referring to the relevant provisions regulating the situation of employees, the statutory equalization of the scope of collective rights of non-employees with the situation of employees, the lack of criteria differentiating these rights, as well as the adopted model of trade union representation based on company trade unions, not taking into account the specific situation of people working for profit outside the employment relationship, are the reasons why the amendment to the trade union law is seen critically and requires further changes.

Glosa do wyroku Sądu Najwyższego z dnia 14 grudnia 2017 r., II PK 322/16

The subject matter of the judgement are the issues concerning the violation of the principle of equal treatment in employment. While the Supreme Court has convincingly proved that it is not the violation of the said principle if the differences in remuneration of given employees result from their performance of diverse jobs – both in the objective context (qualifications and professional experience) and the subjective one (level of liability and effort), the doubts are caused by the thesis expressed as part of consideration concerning a failure of an employer to grant interim leaves of a trade union nature. The Supreme Court has decided that a failure to grant paid leave to an employee so that they could participate in a few-day trade union training does not constitute a violation of Article 31, section 3 of the Act on trade union organizations, nor it is a form of discrimination of the employee, since the interim leave from work refers to short-term, sudden activities justified by a crucial need of a trade union nature. This view stems from the content of Article 80 of the Labour Code. The basis for stating the meaning of a term “interim activity resulting from a trade union function” should not be Article 80 of the Labour Code which in fact regulates a different matter, i.e. remuneration for work, but a regulation provided for in the Act on trade union organizations, which refers directly to this institution.

La tutela del derecho a la no discriminación de los trabajadores de edad avanzada en el contexto español y de la Unión Europea

La edad constituye un factor de discriminación respecto del que, en ocasiones, el afectado no es ni tan siquiera consciente, probablemente como consecuencia de “valores” asumidos socialmente, que hay que combatir. El hecho de que, en el caso español, la Constitución no mencione expresamente a la edad como causa de discriminación, y de que, en el ámbito de la Unión Europea, no fuese hasta el año 2000 cuando apareció la Directiva 2000/78/CE sobre igualdad de trato en el empleo y la ocupación, prohibiendo la discriminación por motivos entre otros, de edad, pueden haber contribuido a generar esa percepción social.La discriminación por razón de edad en el ámbito laboral se ha venido manifestando fundamentalmente en los momentos de inicio y fin del contrato de trabajo. En el primer caso, exigiendo una edad máxima para el acceso al empleo. En el segundo, estableciendo criterios o preferencias fundados en la edad para determinar la extinción del contrato de trabajo o, incluso, la salida del mercado laboral. Ambos aspectos constituyen el objeto de este estudio que incidirá no solamente en la presentación y estudio de las conductas discriminatorias, sino también en los mecanismos su reparación.

Effective enforcement of EU labour law: A comparative example

The article looks at the outcome of the two legal proceedings in the Schüth and IR cases. In both cases employees of the Catholic Church – a choirmaster and organist in a Catholic parish and a trained physician working as Head of the Internal Medicine Department of a Catholic hospital - were dismissed because of the violation of the Basic Regulations on Employment Relationships in the Service of the Church. In the Schüth case Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life, had been violated. In the IR case the Charter of Fundamental Rights of the European Union and the Directive establishing a general framework for equal treatment in employment and occupation were applicable. The dismissal in IR was held to be unequal treatment in employment. But the outcome of both cases was very different. We find that Union law and in particular Article 47 of the Charter of Fundamental Rights of the European Union makes all the difference. In the Schüth case, the employment relationship was terminated and the claimant’s only consolation was a claim for damages from the State. In the IR case, on the other hand, the termination was declared invalid and the employment relationship continued, i.e. the head physician did not lose his job. The comparison of the cases demonstrates that European law, backed by Article 47 of the Charter of Fundamental Rights of the European Union, has not only permeated procedural law, it has also led to an increase in judicial reviews of substantive law which in the application of Union law is a far cry from a mere plausibility review.

La alteración de la salud del trabajador como factor de discriminación en las relaciones laborales: discapacidad y enfermedad

The concept of disability, which is not unitary in our legal system, is in constant evolution, and proof of this is the recent jurisprudence of the TJUE, which in the field of occupation and employment, has meant the configuration of a flexible concept of disability, which allows for the extension of the legal protection of Council Directive 2000/78/EC, of 27 November 2000, relating to the establishment of a general framework for equal treatment in employment and occupation, to those workers who suffer from ailments which, despite not being administratively classified as a disability, are worthy of this special protection. This doctrine is a novelty since, even though it is limited to labour relations, it abandons the traditional conception of disability as a permanent and irreversible situation.

Notes on Church-State Affairs

The European Court of Justice ruled that Austria’s law that makes Good Friday a holiday for only those employees who are members of specified Christian churches violated the European Council directive on the equal treatment in employment. The law had also provided for extra pay for people in the specific churches if they had to work on Good Friday. More than fifty religious groups lodged a complaint with the Constitutional Court about a new law that interferes with ritual slaughter required by Islam and Judaism. The law requires stunning an animal before slaughter, which is not done in kosher or halal slaughter. Brussels’s chief rabbi said there is no proof that animals suffer more in ritual slaughter than in conventional stun slaughter. New Islamic criminal laws provided that gay sex and adultery could be punished by stoning to death. The new provisions were in sections added to Brunei’s Sharia Penal Cole. Sultan Hassanal Bolkiah instituted the code in 2014 to increase the influence of Islam in the country. After the stoning provision provoked international protests, the government indicated that the death penalty would not be enforced.

The Impact of the EU Charter of Fundamental Rights on Anti-Discrimination Law: More a Whimper than a Bang?

AbstractThis article explores the influence of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union in the development of EU equal treatment law, with emphasis on forms of discrimination precluded by Council Directive 2000/43 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The author contends that although Articles 20 and 21 are primary measure of EU law, their impact in the development of case law elaborated pursuant to the Directives is relatively muted. This may have stunted the development of jurisprudence on the relationship between Articles 20 and 21 of the Charter, and rules contained in Title VI of the Charter governing its interpretation and application, such as Article 52(3) on the relationship between the Charter and the European Convention on Human Rights, and Article 52(1) on justified limitations. The author forewarns against the emergence of incoherence in the case law in this context, and with respect to the role of Articles 20 and 21 in disputes over the meaning of Directives 2000/43 and 2000/78 and calls for fuller reflection on Charter rules in disputes based on an allegation of discrimination.

You Can Leave Your Hat on, but Not Your Headscarf: No Direct Discrimination on the Basis of Religion

In its judgments in the Achbita and Bougnaoui cases, the Court of Justice of the European Union applied Directive 2000/78 establishing a general framework for equal treatment in employment and occupation to cases in which employees were dismissed because they refused to remove their headscarf when coming into contact with customers. This article offers a critical assessment of the Court’s reasoning and conclusions. In Achbita, the Court ruled that a prohibition on wearing an Islamic headscarf, arising from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of the Directive. However, various counter-arguments can be raised against this conclusion, which the Court does not address. The Court acknowledged in Achbita that an employer’s wish to pursue a policy of neutrality in its relations with customers is a legitimate aim that can justify an indirect distinction based on religion. In Bougnaoui, however, it warned that the willingness of an employer to take account of the wishes of the customer no longer to make use of the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive. It is not entirely clear how these conclusions on the ‘legitimate aim test’ relate to each other and how they can be reconciled. Finally, the Court’s guidance to the referring judge on the proportionality test in Achbita gives rise to a series of questions. Its approach to the necessity test leaves remarkably little room for the national judge to make an assessment based on the particularities of the case. The absence of any guidance when it comes to proportionality in the strict sense is equally striking.

Evaluación cualitativa de las directivas de igualdad racial y de igualdad en el empleo

El objetivo es evaluar los procesos de transposición en los Estados Miembros de la Unión Europea de la Directiva 2000/43/CE relativa a la aplicación de la igualdad de trato de las personas independientemente de su origen racial o étnico y la Directiva 2000/78/CE relativa al a la igualdad de trato en el empleo y la ocupación. La protección contra la discriminación es uno de los ámbitos en los que la legislación comunitaria afecta más de cerca a los ciudadanos europeos. El marco normativo creado por las dos Directivas de la UE de lucha contra la discriminación ha configurado la legislación europea durante más de una década. Los condicionamientos derivados de los desarrollos normativos afectan a las políticas comunes y estatales y a las intervenciones sociales y modalidades del trabajo social, orientados a la erradicación de las discriminaciones de origen racial y de todas aquellas que se manifiestan en mundo laboral.

Ewolucja Kodeksu pracy

The Labour code came into force on January 1, 1975. It was adopted for political and ideological reasons. Nevertheless it contained a number of good provisions, partially based on the pre-war labour legislation. Since 1989 it has been amended about seventy times. Provisions connected to the previous system have been repealed. The Code has been adjusted to the market economy. The foregoing pertains especially to preventing the escape from employment relationship, working time, prohibition of employee’s competition, collective bargaining. Regardless of the above the rights of employees in relation to parenthood have been extended a few times. Many provision of the Labour code have been changed as a result of the implementation of the European Union directives which applies e.g. to equal treatment in employment, fixed-term contract, transfer of undertaking, working time, health and safety at work. The Labour code is inconsistent. An attempt to issue a new one failed a few years ago.

Tackling Age Discrimination against Older Workers:A Comparative Analysis of Laws in the UnitedKingdom and Finland

The European Union is experiencing a period of dramatic demographic change. As individuals live longer, and the proportion of ‘prime age’ workers decreases, governments are increasingly seeking to extend working life, particularly by encouraging older workers to remain in employment for longer. This has encouraged a greater focus on reducing age discrimination in employment to enable older workers who wish to continue to work to do so, including through the introduction of age discrimination legislation at the EU and domestic level. However, despite the presence of a general framework for equal treatment in employment and occupation at the EU level, there are still significant differences across national provisions. This paper considers how age discrimination laws affecting employment differ between EU Member States, focusing particularly on the United Kingdom and Finland.

Stan cywilny osób homoseksualnych a zasada niedyskryminacji w orzecznictwie TSUE na tle odpowiedzi na pytanie prejudycjalne w sprawie c-267/12 – Frédéric Hay przeciw Credit Agricole mutuel de charente-maritime et des deux-sèvres

The text shows impact of the EU law on the internal legal order in question sat the edge of competences of the Members States, as matters of civil status stay beyond the exclusive competences of the EU. The ECJ develops previous case-law concerning relation between the non-discrimination rule and sex-orientation in the labor matters. In the light of the Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, the CJEU treated the French PACS concluded by a homosexual couple at the same way as a marriage in spite of the fact that the French legislation had highly differentiated both statuses at the moment when the facts of the case took place. The provisions of “the bank collective agreement, […] under which an employee who concludes a civil solidarity pact with a person of the same sex is not allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry” create a direct discrimination in the light of the Art.2(2)(a) of Directive2000/78/EC.

Women Between a Rock and a Hard Place: State Neutrality vs. EU Anti-Discrimination Mandates in the German Headscarf Debate

Although it guarantees individual religious freedom and the inviolability of “human dignity,” the German Basic Law also infers the principle ofstate neutralityregarding the exercise of religious freedom in public life and civil service domains. TheLänder(states), however, enjoy substantial discretion in matters of religion and education, which has led to major divisions as to whetherMuslimas(Muslim women) can wear headscarves aspublicemployees. In 2006 Berlin adopted its own Neutrality Law (Berliner Neutralitätsgesetz) prohibiting religious attire among teachers, judges, and police. Within weeks, the city-state's first anti-discrimination officer was overwhelmed with new discrimination cases involving private sector employers as well. This essay examines the tensions and paradoxes inherent in Berlin's efforts to uphold religious “neutrality” among civil servants while also meeting the requirements of Germany's General Equal Treatment Act and three recent EU Directives 2000/43/EC, 2000/78/EC, and 2002/73/EG), addressing race, religion and equal treatment in employment, respectively. This article argues that the Neutrality Law not only violates national and supranational anti-discrimination regulations but that local officials are actually drawing upon the latter to undermine the enforcement of their own statute, in the hope that it will be repealed.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

MANGOLD v HELM (CASE C-144/04) GRAND CHAMBER, EUROPEAN COURT OF JUSTICE 22 NOVEMBER 2006

Yet Another Way Round Horizontal Direct Effect…In June 2003 Werner Mangold, who was 56 years old, concluded a fixed-term contract of employment with Rüdiger Helm. The contract provided that its duration was based on para 14(3) of the TzBfG (German Law on Part-Time and Fixed-Term Employment) which was intended to facilitate the fixed-term employment of older workers (those over the age of 52). A few weeks into his employment, Mangold brought proceedings against Helm before the Arbeitsgericht München (Munich Labour Court) claiming that the clause fixing the duration of his employment was void in that para 14(3) of the TzBfG, on which it was based, was incompatible with Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and education.

Justifying Age Discrimination

Age discrimination is the only protected characteristic contained in the Equality Act 2010 where it is possible to justify both direct and indirect discrimination. In relation to all the other protected characteristics, such as in race and sex discrimination, there is no possibility of justifying direct discrimination. The test, deriving from Art. 6 of the Framework Directive on Equal Treatment in Employment and Occupation (Directive 2000/78/EC), provides that the employer will need to show that they have a legitimate aim and that the potentially discriminatory action taken is a proportionate means (appropriate and necessary) of achieving that aim.

Young Workers and Age Discrimination

The Framework Directive on Equal Treatment in Employment and Occupation applies to all those in employment, with respect to preventing discrimination on the grounds of age. This article is concerned with the effects of this upon young workers, rather than older workers who are the traditional focus for much of the research on age. Consideration is given to relevant cases at the European Court of Justice (ECJ), as well as in the UK. There is also an examination of the limited research done on this subject and a justification of the need for more.