EELA Updates

Case report

2016-03-01

United Kingdom

2016/10 Associative victimisation claim allowed to proceed (UK)

The Employment Appeal Tribunal (‘EAT’) has allowed a claim of ‘associative victimisation’ to proceed, reversing an Employment Tribunal (‘ET’) judge’s decision to strike it out. Victimisation occurs where someone is subjected to a detriment because of a ‘protected act’ (such as alleging discrimination). In this case, the claimant claimed he had been subjected to a detriment because someone else associated with him had alleged discrimination. The second ET judge to hear the case held that there was not a close enough connection between the claimant and those who made the allegation of discrimination, and struck out the claim. The EAT held that the judge was wrong to find that Mr Thompson was required to show some particular relationship to the person whose protected act was relied upon, and in fact the association could be entirely in the mind of the employer. Association will be a question of fact in each case.This was the first case in the UK to find that it is possible to bring a claim of victimisation by association, and could represent a significant development in UK discrimination law.

Employment Appeal Tribunal, 2015-07-20

Summary

2016-03-01

2016/10 Associative victimisation claim allowed to proceed (UK)

The Employment Appeal Tribunal (‘EAT’) has allowed a claim of ‘associative victimisation’ to proceed, reversing an Employment Tribunal (‘ET’) judge’s decision to strike it out. Victimisation occurs where someone is subjected to a detriment because of a ‘protected act’ (such as alleging discrimination). In this case, the claimant claimed he had been subjected to a detriment because someone else associated with him had alleged discrimination. The second ET judge to hear the case held that there was not a close enough connection between the claimant and those who made the allegation of discrimination, and struck out the claim. The EAT held that the judge was wrong to find that Mr Thompson was required to show some particular relationship to the person whose protected act was relied upon, and in fact the association could be entirely in the mind of the employer. Association will be a question of fact in each case.This was the first case in the UK to find that it is possible to bring a claim of victimisation by association, and could represent a significant development in UK discrimination law.

Employment Appeal Tribunal, 2015-07-20

Case report

2016-03-01

Hungary

2016/5 Government order to suspend civil servants’ pension payments discriminatory (HU)

The European Court of Human Rights (ECtHR) has recently ruled on a Hungarian law suspending payment of civil servants’ pensions for the period during which they are employed in certain areas of the public sector. The ECtHR found this law to be discriminatory as it breaches Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 1, Protocol 1. Hungary, as the respondent State, is to pay pecuniary and non-pecuniary damages and procedural costs and expenses to the applicant, Mr Gyula Fábián. The judgment was delivered on 15 December 2015 and, if not appealed to the Grand Chamber, will cease to be appealable on 15 March 2016.

European Court of Human Rights, 2015-12-15

Summary

2016-03-01

2016/5 Government order to suspend civil servants’ pension payments discriminatory (HU)

The European Court of Human Rights (ECtHR) has recently ruled on a Hungarian law suspending payment of civil servants’ pensions for the period during which they are employed in certain areas of the public sector. The ECtHR found this law to be discriminatory as it breaches Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 1, Protocol 1. Hungary, as the respondent State, is to pay pecuniary and non-pecuniary damages and procedural costs and expenses to the applicant, Mr Gyula Fábián. The judgment was delivered on 15 December 2015 and, if not appealed to the Grand Chamber, will cease to be appealable on 15 March 2016.

European Court of Human Rights, 2015-12-15

Case report

2015-01-16

Czech Republic

2015/3 Sex discriminatory decision not to rehire does not lead to reinstatement (CZ)

The burden of proof of alleged discrimination in Czech labour law cases is distributed between the parties in compliance with the relevant EU Directives. The plaintiff must first present facts based on which it can be presumed that he or she was subject to discrimination and only then is the defendant required to try to prove that the principle of equal treatment was not breached. In cases where the alleged discrimination was caused by a selection procedure in which another candidate was successful and was offered the job, in order to have a chance of success, the plaintiff must also claim that the selection procedure itself was discriminatory.

Nejvyšší soud (Czech Supreme Court), 2015-01-16

Summary

2015-01-16

2015/3 Sex discriminatory decision not to rehire does not lead to reinstatement (CZ)

The burden of proof of alleged discrimination in Czech labour law cases is distributed between the parties in compliance with the relevant EU Directives. The plaintiff must first present facts based on which it can be presumed that he or she was subject to discrimination and only then is the defendant required to try to prove that the principle of equal treatment was not breached. In cases where the alleged discrimination was caused by a selection procedure in which another candidate was successful and was offered the job, in order to have a chance of success, the plaintiff must also claim that the selection procedure itself was discriminatory.

Nejvyšší soud (Czech Supreme Court), 2015-01-16

Case report

2014-02-07

United Kingdom

2014/33 Union attempt to have new tribunal fee regime struck out (UK)

This case concerns the introduction of a new Employment Tribunal fee regime by the UK government. The trade union, Unison, opposed the regime on four grounds. They claimed it breached the principle of effectiveness, the principle of equivalence, the public sector equality duty, and that it was indirectly discriminatory. All of these grounds were dismissed – however, the Court claimed that the arguments would be better assessed if the challenge was brought later when more evidence could be considered. This leaves the way wide open for another challenge down the line.

High Court of Justice, Queen’s Bench Division (Administrative Court), 2014-02-07

Summary

2014-02-07

2014/33 Union attempt to have new tribunal fee regime struck out (UK)

This case concerns the introduction of a new Employment Tribunal fee regime by the UK government. The trade union, Unison, opposed the regime on four grounds. They claimed it breached the principle of effectiveness, the principle of equivalence, the public sector equality duty, and that it was indirectly discriminatory. All of these grounds were dismissed – however, the Court claimed that the arguments would be better assessed if the challenge was brought later when more evidence could be considered. This leaves the way wide open for another challenge down the line.

High Court of Justice, Queen’s Bench Division (Administrative Court), 2014-02-07

Case report

2013-05-29

Czech Republic

2013/41 Employee claiming harassment must prove unequal treatment and discriminatory intent (CZ)

For an employee bringing a discrimination claim against an employer it is not enough to only allege discriminatory behaviour, the employee also bears the burden of proof that he or she was either treated unequally compared to other employees or in an otherwise unfair way, and must show which of the employer’s actions and/or behaviour is evidence of such treatment. Only after the employee proves the existence of unequal or unfair treatment does the burden of proof shift to the employer, which must then prove that the unfair treatment was not motivated by discrimination.

Nejvyšší soud (Czech Supreme Court), 2013-05-29

Summary

2013-05-29

2013/41 Employee claiming harassment must prove unequal treatment and discriminatory intent (CZ)

For an employee bringing a discrimination claim against an employer it is not enough to only allege discriminatory behaviour, the employee also bears the burden of proof that he or she was either treated unequally compared to other employees or in an otherwise unfair way, and must show which of the employer’s actions and/or behaviour is evidence of such treatment. Only after the employee proves the existence of unequal or unfair treatment does the burden of proof shift to the employer, which must then prove that the unfair treatment was not motivated by discrimination.

Nejvyšší soud (Czech Supreme Court), 2013-05-29