Newsitem
2021-04-28
Academic Board Review 2020: Disability and gender discrimination
Marianne Hrdlicka[1]
Gender discrimination on the one hand, and discrimination on the basis of a disability on the other hand, are both topics that kept courts at the European level (ECJ, ECtHR and EFTA Court) as well as at the national level busy in 2020.
Gender discrimination
Relying on CJEU case law such as Praxair and the framework agreement on parental leave in the appendix to Directive 96/34/EC of 3 June 1996, the French Supreme Court ascertained that the failure to reintegrate an employee into her former role after parental leave can constitute indirect gender discrimination due to the considerably higher number of women than men choosing to go on such leave (EELC 2020/3). In another case (EELC 2020/18), the Romanian Constitutional Court deviated from a restrictive interpretation of the national provisions protecting pregnant employees to a more balanced approach, which also considers the employer’s freedom to conduct its business due to ECJ case law (C-103/16, Guisado – v – Bankia S.A. and others). It held that Article 10 of Directive 92/85/EEC does not apply to cases in which the dismissal of the pregnant employee is based on disciplinary misdemeanors, unjustified absences from work, non-observance of work discipline, closure of the workplace or collective dismissal. The comments from other jurisdictions to this case show that other countries follow a more protective approach ranging from outright prohibitions of dismissal (The Netherlands and Slovakia) to the need for permission from administrative authorities (Germany) or courts (Austria).
Not only national courts but also the ECtHR (33139/13 Napotnik – v – Romania) is looking to the ECJ’s example in its holdings. In its Napotnik judgment, while referencing ECJ cases Dekker and Webb, the ECtHR came to a different conclusion and found no violation of Article 1 of Protocol No. 12 (General prohibition of discrimination) when the applicant’s diplomatic posting abroad was terminated immediately after announcing her pregnancy. By recalling her from her post abroad Romania pursued the legitimate aim of the protection of the rights of others, notably Romanian nationals in urgent need of consular assistance which is not reconcilable with absences for medical appointments and maternity leave. Additionally, the diplomat did not suffer any long-term setbacks in her career due to being recalled.
Yet another case on parental leave (EELC 2020/47) concerns a dismissal due to operational reasons ten days after the return from maternity leave. The Danish Supreme Court held that although one has to disregard that the employee was unable to expand her work experience or complete further training during her absence due to pregnancy, other employees were materially distinct from her in terms of work experience and further training. Since the dismissal was necessary due to a decline in business and the selection was based on objective criteria, the employer was able to discharge the reversed burden of proof.
In the ECJ judgment of 24 September 2020 (C-223/19, YS – v – NK) the Court held that a deduction from pension does not necessarily constitute gender discrimination according to Directive 2006/54, even if far more male recipients are affected as opposed to female recipients. As long as gender was not the basis of this distinction and the consequences are justifiable by objective factors, Article 5(c) and Article 7(1)(a)(iii) of Directive 2006/54 do not preclude such reductions in the legislation of a Member State. The same applies to Article 2(1) and Article (2)(b) of the Framework Directive (2000/78/EC) and national provisions that only affect recipients above a certain age.
On 18 November 2020 (C-463/19, Syndicat CFTC) the ECJ found that Articles 14 and 28 of Directive 2006/54 do not preclude a collective agreement from granting an additional leave solely to mothers. This is the case as long as the provision of such national agreement is applicable only to female workers who bring up their child on their own and aims at protecting such workers from the effects of pregnancy and motherhood. The Equal Treatment Directive was again the subject of another case featured in the EELC, where a female employee was dismissed for serious cause (insubordination and abandonment of post) after she failed to comply with schedule changes that clashed with childcare pick up (EELC 2020/33). With a strong reference to ECJ case law (Dekker, Hofmann, Lommers to name a few) the Brussels Labour Court of Appeal held that a distinction must be drawn between maternity leave relating to the biological condition of women only and parental leave addressed at both parents. Childcare belonging to the latter cannot therefore be protected by the prohibition of gender discrimination. After all, protection of maternity shall not perpetuate a patriarchal role pattern. The final appeal is still pending. Interestingly, the applicant did not invoke indirect discrimination on the ground of sex, which could have been argued due to the higher number of women compared to men taking up childcare responsibilities. Another aspect that could change the outcome of future cases similar to this one is the recent insertion of ‘paternity’ as a protected criterion for direct discrimination in Belgium, since the rationale of the court regarding preventing the perpetuation of a traditional division of roles would no longer hold up.
EELC also featured an EFTA Court case from Norway in which the scope of the Equal Treatment Directive was at issue (EELC 2020/48). The Court ascertained that the Norwegian provision – which has been a controversial issue at the national level since 2006 – rendering a father’s entitlement to parental benefits during a shared period of leave dependent on the mother’s situation but not the other way around, did not concern employment and working conditions pursuant to Article 14(1)(c) of Directive 2006/54. The case was dismissed for falling outside the scope of the Directive and therefore the Court did not assess whether this provision amounts to discrimination.
Disability discrimination
The Danish Eastern High Court upheld an initial judgment by a Danish district court, which ruled the employee’s sickness absence due to work-related anxiety to be a result of the employer’s non-compliance with its obligation to reasonably accommodate the employee’s impairment (EELC 2020/14). The fact that the employee did not express any specific needs herself did not satisfy the burden of proving that the employer had taken appropriate measures to accommodate her disability. The dismissal as a result of sickness absence was thus unjust and entitled the employee to compensation. The nature and extent of such reasonable accommodation of Article 5 of Directive 2000/78 was up for discussion in another EELC case report (2020/16). The Irish Supreme Court raised the bar for proving that appropriate measures have been taken as it held that the employer’s obligation may go as far as redistributing duties. The question that remains is how far can a reduction of tasks go without changing the job description and creating an entirely new position? A dissenting judgment and the many comments from other jurisdictions suggest that the scope and proportionality of reasonable accommodation is a controversial topic.
In EELC 2020/15 a method of calculation for severance payments based on the earliest possible change to pension was at issue. The statutory option for disabled persons to leave on early retirement pensions resulted in lower payments for the same. The Federal Labour Court of Germany found that the smaller amounts in comparison to what non-disabled employees received constituted indirect discrimination against disabled persons. Following ECJ case law (C-152/11, Odar) the Court held that the discrimination was not justified by objective factors unrelated to the disability. In the end, the early pension statute aimed at leveling the playing field, taking into account difficulties disabled persons face. Adjusting the payment to a lower level would render the advantage granted to disabled employees futile.
The question whether employees can forgo potential claims under national legislation implementing the Framework Directive – for example, compensation for discriminatory dismissal – engaged the Danish Western High Court in 2019 (EELC 2020/32). In this case, the employee, assisted by her professional organisation, and her employer entered into consultation on the terms of her dismissal, which resulted in a signed agreement. Two years later the same professional organisation challenged the dismissal based on discriminatory claims. The High Court factored in two main circumstances: during the negotiation, the fairness of the termination was not questioned by any party even though the consultation procedure was based on a provision concerning justification of dismissal and the agreement was favourable to the employee compared to her statutory rights. Thus, the agreement represented a final settlement of any claims arising out of the dismissal and the employee was barred from claiming compensation.
Conclusion
Compared to last year, 2020 featured many gender discrimination cases highlighting the relevance and timeliness of topics like parental leave and protection of pregnant employees. It will be interesting to see what the case reports in 2021 will bring, especially with the rise in home office working arrangements.
[1] Marianne Hrdlicka is a Research And Teaching Assistant, PhD Candidate at WU (Vienna University of Economics and Business).