Newsitem
2021-05-26
Age, religious, sexual orientation and other discrimination
Author: Daiva Petrylaitė[1]
Non-discrimination case reports make up a significant part of the EELC reports in 2020. The eight judgments about age, religious, sexual orientation and other general discrimination issues were reviewed: three of them are judgments of the ECJ and five judgments are of national courts.
Age
The two ECJ judgments about age discrimination issues were reported in EELC. The first one – Joined Cases Land Sachsen-Anhalt (C-773/18 to C-775/18) needs to be highlighted since it dealt with so-called secondary age discrimination. In 2011, the ECJ ruled that certain public sector employees were discriminated against under German law when their basic salary was determined on the basis of their age (Hennigs and Mai, C-297/10, C-298/10). Later, in 2014 and 2015 the ECJ delivered judgments on the very same aspect (Specht and Others, C-501/12 to C-506/12, C-540/12 and C-541/12; Unland, C-20/13). In the course of the implementation of the above-mentioned Court judgments, the national law was changed and it was decided to compensate the part of the unpaid salary to the civil servants and judges who received lower remuneration due to age discrimination. However, the percentage of this pay gap was calculated by applying the basic salary, which was determined in accordance with the provisions of the basic salary national legal norms, i.e. directly related to age. The ECJ recognised that such legal regulation must be held as a new form of different treatment for the purpose of Article 2(1) of Directive 2000/78. However, in assessing the limited temporal scope of the measure, its objective of ensuring adequate remuneration for judges and civil servants according to the importance of their functions, and the absence of any other appropriate system of comparative reference during the transitional period, the Court found that such difference in treatment between civil servants and judges of their age is justified under Article 6(1) of Directive 2000/78. The second aspect which was investigated in this judgment was the limitation period for compensation for damage suffered as a result of discrimination. The Court justified the existence of such limited period as such, but its duration must be set in such a way as to comply with the principles of equivalence and effectiveness.
The other ECJ judgment in the case Comune di Gesturi (C-670/18) also dealt with the age discrimination situation, when national law established a form of restriction for retired persons to deliver paid consulting services in public sector institutions, inter alia, by limiting the period of terms of office and stipulating that services were to be performed on a voluntary basis. The Court found that, referring to retirement, the national legislation at issue in the main proceedings was based indirectly on a criterion linked to age within the meaning of Article 1, in conjunction with Article 2(2)(b), of Directive 2000/78. In assessing the appropriateness and necessity of this legal instrument, the Court noted that the very purpose of employing young people and thus limiting the employment of persons of retirement age is justified. However, in each case, there must be clear circumstances that would actually constitute a change in the generations and careers of employees, rather than imaginary and only theoretical or existing temporarily. Finally, the Court noted that in each case not only the retirement age itself but also the amount of pension benefits as a whole must be assessed before deciding on the appropriateness and necessity of such a restrictive measure.
As regards the national precedents, the two decisions were reviewed. The Supreme Court of the Netherlands found that the Court of Appeal had not correctly come to the conclusion that a capped redundancy pay measure was age discriminatory (EELC 2020/17). The Court, inter alia, noted that such social measures are subject to a wide discretion granted to the social partners in both the aims of social policy and means to implement it. Still, the necessary procedural steps must be taken – whether there are legitimate aims, and whether the measure is necessary and proportionate. In line with ECJ case law, it also held that there cannot be any difference depending on whether the measures are established by law or collectively agreed. The Brussels Labour Tribunal ruled that an age limit of 25 for the recruitment of air traffic controllers constituted direct discrimination (EELC 2020/2). The Court found that the employer could not substantiate its position by any scientific and objective facts that such a maximum age for novice air traffic controllers was objectively justified because of the link between the cognitive ability of employees and safety needs related to air traffic. The Court decided that such age limit was disproportionate to the legitimate objective and indicated that the fact that very similar legal regulations exist in other Member States was not sufficient to justify the Belgium legal regulation. I wonder how this situation will be assessed in the higher national courts, should the case end up there.
Religion
Although issues of religious discrimination in the workplace are becoming more relevant every year, in 2020 only one national court judgment was reviewed. The German Federal Labour Court appealed to the ECJ for final clarification in particular regarding the relationship between the basic rights of a private company to establish relevant internal rules to prohibit the wearing of religious symbols and the employee’s constitutional right to religious freedom. In this case the Muslim employee working as a cashier was not allowed to wear any headgear at work. The employer based this internal regulation on the ECJ rules indicated in the case G4S Secure Solutions (C-157/15) that the wearing of religious symbols may be prohibited if the company wants to achieve the aim of company neutrality and if the prohibition applies to all religious beliefs and ideologies without any distinction. The first two lower instance courts found that the situation was discriminatory and a violation of the employee’s freedom of religion, while the Supreme Court held that a decision in this matter required the clarification and interpretation of EU and national constitutional law. The legal community has high hopes for this pending ECJ case (C-341/19) and expects the Court to provide clear criteria and indications, i.e., to extend its 2017 judgment in the case G4S Secure Solutions on neutrality requirements in terms of religious freedom.[2] [Editorial remark: in fact, shortly after this contribution was finished, the opinion of Advocate General Rantos was published under Joined Cases C-804/18 and C-341/19 (WABE).]
Sexual orientation
The ECJ judgment in the case Associazione Avvocatura per i diritti LGBTI (Case C-507/18) needs to be highlighted. This judgment received a lot of attention from both practitioners and legal scholars.[3][4][5][6 The Court decided that statements suggesting the existence of a homophobic recruitment policy can fall within Directive 2000/78 as long as the link between the statements and the recruitment policy is not merely hypothetical. The three main criteria, which must be assessed in each situation before justifying it, were also indicated by the ECJ: first, the status of the person making the remarks, and the capacity in which they were made, which must show that the person is a potential employer, or is capable of exerting a decisive influence on recruitment policy or decisions (or may be so perceived); second, the remarks must relate to the conditions for access to employment with the employer concerned and establish an intention to discriminate contrary to Directive 2000/78; and third, the context in which the statements at issue were made – in particular, their public or private character, or the fact that they were broadcast to the public, whether via traditional media or social networks – must be taken into consideration. Moreover, the Court held that in the context of Directive 2000/78 the freedom of expression is not absolute and may be subject to limitation. The ECJ indicated that if the statements fell outside the concept of ‘conditions for access to employment … or to occupation’ in Article 3(1)(a) of Directive 2000/78 solely because they were made outwith a recruitment procedure, in particular in the context of an audiovisual entertainment programme, or because they allegedly constitute the expression of a personal opinion of the person who made them, the very essence of the protection afforded by that Directive in matters of employment and occupation could become illusory. Even more, the expression of discriminatory opinions in matters of employment and occupation by an employer or a person perceived as being capable of exerting a decisive influence on an undertaking’s recruitment policy is likely to deter the individuals targeted from applying for a post.
In the judgment the Court ruled against homophobia in the recruitment process and emphasised that such a process must be non-hypothetical, in other words, the Court did not rule directly on this form of discrimination in employment relations in general. However, this decision clearly establishes the relationship between freedom of expression and the prohibition of discrimination, and also emphasises the responsibility of the employer as a stronger party in the recruitment process. Therefore, this judgment opens up the possibility of raising issues of homophobia, liability for bullying and psychological harassment in the workplace and claiming protection in such cases relying upon Directive 2000/78.
Harassment at work
Harassment, both physical and psychological, is becoming a serious issue in today’s employment relationship. For employees who deal with this social problem, and who submit the relevant complaints, national legislation lays down certain rules of protection, inter alia, against unlawful dismissal. However, as the judgment of the Belgian Court of Cassation (EELC 2020/13) shows, such legal protection is not absolute and does not automatically work. In this particular case, the mere submission of a complaint of violence at work was not recognised by the Court as a legitimate and sufficient ground for declaring the dismissal of the employee illegal. The Court found that even if the grounds for dismissal and the complaint have a certain connection, where the employer can prove that the grounds for dismissal are not related to the submission of the complaint on the merits, such dismissal cannot be considered unlawful.
[1] Daiva Petrylaitė is a Professor of Labour Law at the Vilnius University.
[2] See also the article of Filip Dorssemont, ‘Freedom of religion: a tale of two cities’ in EELC 2020/27.
[3] For example: A. Tryfonidou, ‘Case C-507/18 NH – v – Associazione Avvocatura per i diritti LGBTI – Rete Lenford: Homophobic speech and EU anti-discrimination law’, Maastricht Journal of European and Comparative Law, 27(4), 2020, pp. 513-521,
[4] doi.org/10.1177/1023263X20946535
[5] ; V. Passalacqua, ‘Homophobic Statements and Hypothetical Discrimination: Expanding the Scope of Directive 2000/78/EC’, European Constitutional Law Review, 16(3), 2020, pp. 513-524,
[6] doi.org/10.1017/S1574019620000267