Combating discrimination in the field of employment: Analysis of ECtHR practices

Abstract

BACKGROUND:

EU law states that protection against discrimination arising in employment and employment extends to all grounds provided for by non-discrimination directives adopted in 2000. The scientists have found that the level of discrimination has significant differences depending on the country, as well as in relation to different minority groups. The European Court of Human Rights (ECtHR) has consolidated the status of an influential international court and by its decisions can affect the field of employment and at the moment plays the role of an extremely important figure in the development of human rights in Europe and abroad.

OBJECTIVE:

The main purpose of this research is to study the practice of ECtHR to combat discrimination in employment and employment relations, because today discrimination, despite its ban at the national and international levels, remains in almost all spheres of public life and hinders the provision of equal rights. In its case-law, the Court has developed arguments concerning the direct protection of human rights, its fundamental freedoms, where discrimination is prohibited in all spheres of public relations.

METHODS:

The main method of research was a historical, legal, theoretical and comparative analysis of ECtHR practice.

RESULTS:

The previous allocation of discrimination in this area on the basis of race and gender was significantly expanded by issues of gender identity, religion, sexual orientation, which is caused by the development of social relations in the labor market.

CONCLUSION:

The article highlights measures aimed at combating and predisposing discrimination in the field of employment.

Keywords

Discrimination ECtHR employment international court judicial practice

1 Introduction

Even in the modern world, there is discrimination in almost all spheres of public life, despite its prohibition at the legislative level. Discrimination is considered to be the refusal of a person to be equal, based on his belonging to a certain group [1]. It becomes a significant obstacle to ensuring equal rights and opportunities for citizens. It is worth noting that a significant level of discrimination remains in employment and employment relations. Adopted in 2000, the Employment Equality Directive, which prohibited discrimination on the basis of social orientation, age, disability and religious beliefs in the field of employment and the Directive on Racial Equality, which prohibited discrimination on the basis of race or ethnicity in employment relations, became a significant extension of non-discrimination legislation [2]. Anti-discrimination laws and policies are primarily aimed at preventing negative differences and exclusions, restrictions or preferences on the grounds of nationality, race, article, language, religion of color and others [3]. However, stereotypes in the field of labor relations and employment continue to embarrass individuals in this way discriminating against them, despite the fact that organizations in some way try to use means to mitigate bias [4]. The employer may first of all discriminate against employees due to the fact that he does not like them or for some reason believes that they are less productive than others. In most cases, employers when hiring an employee choose a candidate based on their own (cultural) preferences, which in most cases leads to economically inefficient decisions directly related to hiring [5]. Although discrimination is more the result of his cognitive biases and his tendency to distort reality due to negative stereotypes about people who are different from you and me [6].

Studies of many scientists note that the level of discrimination varies significantly depending on the country [7]. It is worth noting that discrimination in employment and directly in the workplace is the essence of increasing sensitivity both in national law and in Union law, which is currently in the process of finding effective ways to combat it [8]. One of the significant reasons for the emergence and spread of discrimination in the field of employment is a rather fierce competition among workers in the labor market, which leads to violations of workers’ rights in labor relations. Drawing attention to the theory of statistical discrimination, it can be traced that most employers act solely on economic interests: due to incomplete information and negative group beliefs concerning minority skills, in most cases, the majority candidates will be preferred [9, 10].

The European Court of Human Rights (ECtHR), with its case-law, remains an extremely important figure in the development of human rights not only in Europe but also abroad. In its practice, the ECtHR has developed clear legal and logical arguments regarding the protection of human rights and its fundamental freedoms, among which a separate place is occupied by the prohibition of discrimination [11]. Over the past few years, the ECtHR has significantly expanded the scope of Article 14 of European Convention on Human Rights to indirect discrimination, which it has defined as a policy or measure that seems at first glance neutral, and yet has a disproportionately harmful effect on persons who are members of particularly vulnerable groups. However, despite the increase in the number of complaints submitted to the equality court, the pre-existing right to discrimination is still at a fairly low level, which indicates obstacles to justice [12].

The purpose of this work is to study the precedent praxis of the Court on the issue of discrimination in employment and employment relations. The analysis of the ECtHR’s practice on this problem is quite important due to the fact that this will allow us to eventually form our own opinions on ways to solve this problem.

2 Materials and methods

This study is directly based on the resolutions of the ECtHR, which were made on the question of discrimination that arise in employment relations. For a deep, detailed and comprehensive study of the problem of combating discrimination in the praxis of the ECtHR, a number of special and general research methods were used. In turn, the use of such an integrated approach will allow to engage in a comprehensive study of the issue explored in this article, which in the future will become one of the bricks on the way to building an equal society.

The main method of research was comparative legal, which was used for a detailed study of cases considered by the ECtHR on the problem of discrimination in the field of employment. Taking into account the specifics of this study, there is a need to use deduction, induction, synthesis and analogy, which occupy an important position among other methods used in the collection and processing of research material.

The historical and legal method and structural genetic analysis and synthesis helped in the study of European legislation on the problem of discrimination and the fight against it. Using these methods, it was found that 22 years ago, in the legislation of European countries with the adoption of two directives in the field of combating discrimination, there were significant changes in the positive direction, which in some ways could improve the situation [12]. With the help of the regulatory and dogmatic method, the norms of European anti-discrimination legislation used by the ECtHR in making decisions and directly decomposing the practice of the Court were investigated. On the basis of the historical method, evolution was traced in the modeling of the rules of explanation used by the ECtHR. The use of the system-structural method made it possible to establish systemic connections in the case-law of the ECtHR [13].

A comparative analysis of the level of discrimination in the field of employment in European countries makes it possible to determine that the problem of discrimination in the relations between the employer and the employee remains relevant today, but its level differs not only in different countries, but also in relation to different groups of minorities [5 , 15]. Within the framework of the issues covered in this article, the conceptual approach to the exploitation of the principles of fundamental human rights and freedoms covered in the ECtHR is quite crucial for us [16].

The main stages of the study on combating discrimination in the field of employment in ECtHR decisions include the following: 1) the hypothesis that, regardless of the level of development of the country and its economic condition, the issue of discrimination in employment relations is acute; 2) the analysis of ECtHR decisions relating to discrimination in employment relations; 3) the practice of European countries to overcome this problem.

The theoretical basis of the article is primarily the cases of the ECtHR concerning the problem of discrimination in employment relations, as well as research of scientists and scientific articles on the level of discrimination in the field of employment in European countries and ways to combat it. The materials and methods used during this study allowed to fully and from different sides to investigate the issue of combating discrimination arising in the field of employment and to obtain objective and motivated conclusions and results.

3 Results

As is known, one of the fundamental values of any country is equality. However, this issue today is quite exciting not only for governments, but also for ordinary citizens, which is why a number of decisive steps are being taken at the international level to promote discrimination and build an equal society. Discriminatory processes are associated with the rapid growth spurt in the development of science and technology, because the social and political development of the state and its individual institutions leads to the emergence of facts that cause the division of society into separate classes. That is why developed countries have a need for the emergence of superpower formations, whose activities are aimed at combating and predisposing problems related to discrimination. One of these vectors of development is the activities of the ECtHR.

First of all, it should be emphasized that EU legislation proclaims protection against discrimination in the field of employment, covering access to work, conditions of dismissal, hiring, pay conditions and much more. Given that the ECtHR has secured the status of one of the most famous and influential international human rights courts, it is usually given considerable attention in the research of scientists on fundamental human rights. In this case, our research is no exception [17].

After analyzing a number of decisions made by the Court, it can be concluded that the problem of human rights violations in the field of employment, namely discrimination by age, gender, race, sexual orientation, disability, place of residence, political and religious beliefs, property status, linguistic and other grounds, despite a number of adopted regulations, is still widespread.

We have attempted to develop advice to avoid discrimination problems in the field of employment, based on the analysis of the practice of the ECtHR, which are presented below:

•The inclusion of norms of international normative legal acts in national legislation and the use of decisions of the ECtHR as a precedent for national judicial systems.

In most appeals to the ECtHR, decisions were made in favor of the plaintiffs, but it is worth emphasizing that a large number of refusals to accept an application for consideration by the Court concerned only violations of the procedure for applying to the ECtHR or the applicant’s claim, in the Opinion of the Court, was satisfied in the national courts, for example, all relevant national remedies were not used, as was the case in Morozov v. Russia. It is quite regrettable that in order to protect their fundamental rights, to non-discriminate against persons in order to clarify the truth and achieve justice, it is necessary to apply to international institutions due to the fact that the national judicial system is not able to properly protect the individual. That is why, in our point of view, the inclusion of the norms of international regulatory legal acts in national legislation and the use of ECtHR decisions as a precedent for national judicial systems is one of the ways to improve the situation that arose against the background of discrimination in the field of employment.

In our opinion, the first stage of combating discrimination in employment relations is already the fact of recognizing that discrimination as a phenomenon exists in this area. Making decisions on the adoption of the plaintiff’s application is also a positive shift towards combating discrimination in the field of employment. After all, as the court’s practice shows, the applications made by the ECtHR for consideration earlier concerned only manifestations of direct discrimination and positive decisions were not always made in favor of the plaintiff. It was only with the passage of time and the development of relevant international regulations that the Court began to recognise indirect discrimination as a type of discrimination in employment relations.

•Establishment of mandatory indemnification by the employer of the morals of the person against whom discrimination was committed.

In decisions taken in favour of people whose rights had been violated, the Court obliged the defendant only to pay moral or/or material damage, as was the case in I.B. v. Greece, Emel Boyraz v. Turkey, Jurči v. Croatia, Danilenkov and others v. Russia. Indeed, the payment of moral and material damage for the resulting discrimination in the field of employment in some way improves the situation, but this does not happen in general, but only in rare cases and at the discretion of the court. However, the payment of compensation is one-time and in no way will replace the applicant’s opportunity to get a job with stable earnings and does not give any guarantees that another employer will not take discriminatory actions against him. As practice shows, a potential employee from any minority group needs to send almost twice as many resumes, from which we can conclude that stereotypes about them are still at a high level. However, fixing the compulsory reimbursement by the employer of the moral school against the person to whom the discrimination was committed will help reduce its manifestations.

It should be emphasized that the use of ECtHR practice as a recessent on which judges will rely when making a decision in the links of national judicial systems will help reduce the manifestations of discrimination shown by the employer against a potential employee.

•The introduction of information policy and the creation of special institutions aimed at better understanding labor rights and clarifying whether discrimination in employment has taken place in relation to them, as well as finding out what are the possibilities of combating it.

It should be emphasized that not every person against whom actions of a discriminatory nature have the opportunity to apply to the court with a request to protect their rights. First of all, it may be due to ignorance or misunderstanding that certain actions of a potential employer are a manifestation of discrimination. In this case, it is quite important to introduce an awareness policy that allows citizens to better understand not only their rights, but also whether there was discrimination in employment against them, as well as to find out what are the possibilities of combating it, because effective counteraction to discrimination in employment relations is concluded primarily in the understanding by minorities of what attitude is acceptable to them. Indeed, the ability to combat discrimination depends largely on a basic understanding of its action and the consequences it entails for individual groups. The creation of special institutions that will combat discrimination in the field of employment against different categories of subjects will also come to the rescue in this case, because in fact they will take responsibility for implementing an effective awareness policy among various social groups. Widespread advertising aimed at explanatory work among the population, relevant government policies, conducting a number of workshops and trainings among employers and employees will help reduce the impact of stereotypes, thereby destroying them, reduce the level of discrimination against different minority groups in the field of employment and change the thinking of the population for the better.

•Reducing the cost and simplifying the procedure of applying to court.

Quite often a person, realizing that discriminatory actions were committed against him, simply cannot apply to the relevant court, because he simply cannot afford it. That is why it is important not only to simplify the procedure for applying to court, but to reduce the cost, because not every person against whom discrimination has been committed against has the appropriate amount of funds for going to court.

•Implementation of the ban on discrimination at the national level and implementation of appropriate sanctions against employers who discriminate against potential employees by their actions.

Quite often, discrimination against certain minorities arises already at the stage of vacancy, where among the skills that a candidate for a particular position should possess are the gender of employees, age and other discriminatory formulations. That is why it is important to enshrine the prohibition of discrimination directly in its negative manifestation, which involves the division of persons by gender, age, race, disability, sexual orientation and others. It is also necessary to enshrine at the legislative level a ban on the appearance of job ads that contain discriminatory expressions against different minority groups.

However, one ban is not enough, for the effective operation of this system of measures it is important to introduce a number of punitive measures. In our opinion, a very effective method in combating discrimination in the field of employment is the introduction of appropriate sanctions against employers who discriminate against potential employees by their actions. Updating the mechanisms for punishing violators of anti-discrimination legislation, from our point of view, is one of the effective methods of combating discrimination arising in employment relations.

A significant increase in sanctions and the introduction of stricter mechanisms for punishing employers will help significantly reduce discrimination in this area of public relations. After all, if, in addition to the ban, there are certain types of punishment for both employers and other employees, the number of those who want to discriminate against someone by their actions will significantly decrease. The use of the above-mentioned measures will help stop the spread of discrimination against different minority groups in the field of labor relations.

The implementation of all these actions both at the national and international level will allow us to approach overcoming this problem comprehensively and systematically, which in turn will create the necessary ways to counteract the fact of discrimination arising in the field of employment.

4 Discussion

Fierce competition taking place in the labor market leads to violation of workers’ rights, the emergence and spread of discrimination [18]. The activities of the ECtHR, as well as anti-discrimination laws, are aimed at combating discrimination in relations in employment field. The Court, with its case-law, is one of the most important participants in the development of human rights, because equality today is one of the main values of society [19]. The decisions made by the ECtHR declare protection against discrimination in the field of employment, which, among other things, covers equal access to work, hiring, terms of remuneration and dismissal, etc. Expansion of the scope of Art. 14 allowed the Court to recognize indirect discrimination as one of the types of discrimination.

At this time, the issue of combating discrimination in the field of employment is quite relevant. This study makes a significant contribution and expands previous research on similar topics. Previous studies have found that equality is a rather comparative concept, because a person can be sure whether he has so-called equality solely comparing his own conditions with the conditions of others, but at the same time there is a tendency in laws and practice to provide different attitudes towards persons in similar situations, which can lead to direct discrimination [20].

In accordance with EU law, protection against discrimination in the field of employment applies to all grounds provided for by non-discrimination directives [21]. Most research scientists are of the opinion that a more detailed analysis of judicial practice regarding combating discrimination shows that in the decisions made by the ECtHR on the prohibition of discrimination, in particular in the field of employment, a shift in the positive direction can be traced [22].

The modern workplace has significant differences from the workplace that existed at the time of adoption of most laws on discrimination in the field of employment, the previous emphasis on discrimination arising in the field of employment on the basis of race and gender was actually expanded by increased attention to sexual harassment, discrimination on the basis of disability, gender identity, religion and sexual orientation [23].

There are two main ways in which the ECtHR can influence the field of employment: a direct path, that is, the adoption by the respondent State of the necessary general measures required by a separate decision of the Court, and indirect, that is, the imposition on the state of a number of positive obligations regarding the observance of human rights in the workplace. The ECtHR exerts indirect influence on certain national employment standards, establishing a number of requirements relating to the consideration of disputes at the national level [24]. Some analysts argue that the court practice of the ECtHR shows that complaints of discrimination on the grounds of race, ethnicity or religious affiliation in the field of employment are clearly analyzed in terms of prohibiting discrimination as a phenomenon as a whole [21]. A large number of studies published over the past 10 years demonstrate discrimination arising in the field of employment against racial and ethnic minorities [25, 26].

It has often been argued that one of the main obstacles to making full-fledged claims under Article 14 was that it could only be combined with a violation of other ECtHR rights, but the ECtHR in its practice moves to a more meaningful understanding of equality in its case-law, recognizing indirect discrimination [27]. Despite the fact that some researchers are of the opinion that the ECtHR deliberately tries to avoid over-interpreting of Article 14, with the aim to allow itself to create some maneuver, by the way due to ECtHR’s practice of explanation has shaped such principle as non-discrimination [28]. The concept of access to work in accordance with international non-discrimination law has been widely interpreted by the ECtHR, primarily concerning a person who is in the process of finding a job, as well as the selection criteria and conditions for hiring for this job [21].

As already mentioned, one of the main and fundamental provisions of the protection of human rights is non-discrimination and equality, as well as the right to equal protection of the law without existence of any form of discrimination. During the period of operation of the ECtHR, a significant number of cases of violation of the principle of non-discrimination in employment were considered, which is reflected in court decisions in which the approach to explaining the right to non-discrimination has gradually changed. Initially, the ECtHR extended a number of violations from the ban, which was direct to the detection of indirect discrimination [29]. The judgments of the Court have had a significant impact on the formation of this principle in national legal systems. All this contributed to the creation of an effective mechanism for combating discrimination and protecting victims of discriminatory actions [29]. The ECtHR does not contain a definition of discrimination, but it developed the concept of discrimination in its practice, that is, the Court found that in order for the issue to arise in accordance with Art. 14 of the ECtHR, there must be a difference in behavior with persons in analogous or suchlike situations due to their gender, age, race, skin color or other characteristics [30].

This study provides new insight into the fight against discrimination in employment. It was found that effective counteraction to discrimination in employment is possible only with the use of a systematic and comprehensive approach to this problem. Analysis of ECtHR practice shows that positive developments are taking place in this area, but there is a need to introduce new mechanisms to combat discrimination against potentialemployees.

5 Conclusions

Despite the adoption of both national and international regulations aimed at prohibiting discrimination in the field of employment, the problem is still widespread. The court practice of the ECtHR shows that despite a number of international regulations, the problem of discrimination on various grounds during employment remains widespread. The decisions of the Court had a significant impact on the formation of this principle in national legal systems. The ECtHR does not contain a definition of discrimination, but has developed the concept of discrimination in its practice. Therefore, it is necessary to take measures aimed at combating discrimination in this area, in particular:

Recognition of the existence of discrimination as a phenomenon in this area

Introduction of the concept of indirect discrimination as a type of discrimination in labor relations

Fixing the compulsory reimbursement by the employer of the moral school against the person to whom the discrimination was committed

The introduction of the so-called awareness policy and the creation of special institutions dealing with discrimination in the field of employment

Simplifying the procedure for applying to court and reducing the cost of court proceedings

At the legislative level, enshrine the prohibition of discrimination based on gender, age, race, disability, sexual orientation, and enshrine a ban on the appearance of job advertisements that contain discriminatory statements against various minority groups

Significant strengthening of sanctions, as well as updating and introduction of tougher mechanisms for punishing employers

The use by national courts of case law of the ECtHR in making decisions will help reduce the manifestations of discrimination that manifests itself in the field of employment.

It should be emphasized that the analysis of ECtHR practice shows that there are shifts in the field of employment in a positive direction, but there is still a need to introduce new, tougher mechanisms to combat discrimination. That is why effective counteraction to discrimination against a potential employee is possible only if the comprehensive, permanent and systematic implementation of all mechanisms for combating discrimination both at the national and international level.

Ethical approval

All procedures performed in studies involving human participants were in accordance with the ethical standards of the institutional and national research committees and with the 1964 Declaration of Helsinki and its later amendments or comparable ethical standards.

Author contributions

All authors contributed equally to the work.

Informed consent

Informed consent was obtained from all individual participants included in the study.

Funding

The authors did not receive financial support from any organization for the submitted work.

Conflict of interest

The authors declare that they have no competing interests.

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