Addressing gender discrimination at work, still an important challenge for the ECtHR in Napotnik v. Romania

Beril Önder: PhD Candidate, University of Strasbourg (Institut de Recherches Carré de Malberg) and Ghent University (Human Rights Centre)

On 20 October 2020, the European Court of Human Rights (‘ECtHR’ or the ‘Court’) delivered a judgment in the case of Napotnik v. Romania (application no. 33139/13). The case concerns the immediate termination of a female applicant’s diplomatic posting, allegedly due to her pregnancy,  to the Romanian Embassy in Ljubljana, Slovenia.

This is the first case where the Court not only examines, on the merits, a complaint regarding discrimination on the grounds of sex under Article 1 of Protocol no. 12 of the Convention, but also a complaint concerning gender discrimination in the workplace because of pregnancy. In its judgment, the Court found that the applicant’s diplomatic assignment had been terminated primarily because of her pregnancy, and that she had been treated differently on the grounds of sex. However, it concluded that this difference in treatment did not constitute a violation as the domestic authorities had provided relevant and sufficient reasons to justify the necessity of the measure.

This blogpost will first discuss the facts of the case and the Court’s judgment, and then will focus on the problematic aspects of the judgment from a gender equality perspective.

The facts

The applicant, Ms Napotnik, started working as a Romanian diplomat for the Ministry of Foreign Affairs (the MFA) in 2002. After having sat a competitive examination for a four-year post as a consular officer at the Romanian embassy in Ljubljana, she was nominated for the post and her diplomatic posting started in March 2007. The applicant’s consular work consisted mainly of providing help to Romanian nationals who found themselves in emergency situations in Slovenia, notably in police detention, without identity papers, or who were hospitalised.

She married a Slovenian national in April 2007 and they had two children together, born in June 2008 and July 2009, respectively. During her first pregnancy, in November 2007, she was absent from work for a few days due to pregnancy-related health problems. On 27 November, her obstetrician ordered that she should have bed rest. On the next day she informed the ambassador about her medical condition. She also asked to take her annual leave in the period from December 2007 to January 2008. In the meantime, in December 2007, the applicant was promoted to second secretary, upon being recommended for this position by her superiors.

In December 2007, when requests for consular assistance were high, the ambassador asked for a replacement to be sent for the applicant. However, no replacement was sent from the Ministry of Foreign Affairs (MFA), and the consular section was closed during the applicant’s absence. Requests for assistance were redirected to the embassies of neighbouring countries.

The applicant returned to work during her leave, on 14 and 17 December 2007, in order to deal with urgent consular matters. The applicant resumed her work in February 2008. She then took maternity leave from 2 June 2008 until 19 October 2008, and her annual leave from 19 October 2008 until 5 December 2008. The consular section of the embassy was closed again from 2 June until 15 June 2008. From 15 June 2008, when the consular section re-opened, a replacement was found for the applicant on a temporary assignment.

In January 2019, when the applicant announced her second pregnancy, the MFA decided to terminate her posting in Ljubljana and recalled her to Bucharest. It was considered that she would be unable to carry out her work because of absences for medical appointments and maternity leave. Subsequently, at the applicant’s request, her work contract was suspended by orders of the MFA, firstly in respect of her parental leave (from February 2009 to May 2010 for the first child, and from May 2010 to July 2011 for the second child), and then in order to allow her to accompany her husband on his permanent diplomatic posting abroad (lasting four years). She was not paid her salary by her employer while her contract was suspended. On 1 September 2015, the applicant resumed her work at the MFA, in Bucharest. On 20 September 2016, she was promoted to first secretary.

In the meantime, the applicant brought civil action against the MFA concerning the termination of her post abroad, complaining that the reason for the termination had been her pregnancy, and thus it was discriminatory and unlawful. The domestic courts found that the decision to terminate the applicant’s posting had been lawfully taken by the MFA and within the scope of its discretion, with a view to ensuring the functioning of the MFA, and that such a measure could be taken in respect of all employees of the MFA, irrespective of sex or pregnancy.

The Judgment

The applicant lodged an application with the Court complaining that she was discriminated against at work, in so far as her posting abroad had been terminated because of her pregnancy without any valid reason being presented to her. While the applicant relied on Article 1 of Protocol No. 12 to the Convention in her initial application, in her submissions in reply to the Government’s observations, she further complained of violations of Articles 6 and 8 of the Convention as a result of the same facts.

The Court decided to examine the application solely under Article 1 of the Protocol no. 12 of the Convention. It stated that Article 1 of Protocol No. 12 applied to the facts of the present case because the case concerned a potential discrimination by a public authority in the exercise of discretionary power. In its assessment, the Court underlined that the meaning of the notion of ‘discrimination’ in Article 1 of Protocol No. 12 was intended to be identical to that of Article 14 of the Convention. Thus, it applied the same standards developed under its case-law concerning the protection afforded by Article 14.

According to the Court’s case law under Article 14, a difference in treatment based on an identifiable characteristic, or ‘status’, is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised. In the present case, the Court first established that the applicant’s diplomatic assignment had been terminated mainly because of her pregnancy. In this regard, the Court underlined that it had been considered that the applicant would be unable to carry out her work because of absences for medical appointments and maternity leave, that the decision to recall her to Bucharest had been taken as soon as she had announced her second pregnancy, and that, in their submissions, the Government also accepted that the applicant’s condition had played a role in the decision to terminate her diplomatic assignment. As a result, the Court concluded that the applicant had been subjected to a difference in treatment on the grounds of sex, stressing that it would amount to a direct discrimination if not justified. It then proceeded with the ‘objective and reasonable justification test’, underlining that the States were afforded with a narrow margin of appreciation.

The Government argued that the early termination of the applicant’s posting abroad had been justified by the fact that her absence would have jeopardised the functional capacity of the embassy’s consular section. They asserted that this decision pursued the legitimate aim of the protection of the rights of others, notably Romanian nationals in need of consular assistance in Slovenia. Having considered this to be a legitimate aim, the Court then examined whether the measure was proportionate to this aim.

First, the Court, considered that the applicant’s absence from the office seriously affected consular activity in the embassy. Secondly, the ECtHR noted that the domestic law allowed an employer to organise the activity of pregnant employees, the sole prohibition being that their work contract might not be terminated. According to the Court, the change in the applicant’s work conditions due to the early termination of her posting abroad could not be equated with a loss of employment. Therefore, the consequences of the early termination of her abroad were not of the same nature as those expressly prohibited by the domestic equal opportunity laws and the State’s international commitments in the field of protection of pregnancy and maternity. Thirdly, the Court held that the applicant had not suffered any significant long-term setbacks in her diplomatic career, as she had continued to be promoted by her employer, first in December 2007 while she was absent during her first pregnancy, and again in September 2016, about a year after her return to work. Lastly, the Court, relying on the domestic courts’ reasoning that the decision to terminate the applicant’s posting had not been a disciplinary measure, concluded that although the decision was motivated by the applicant’s pregnancy, it was not intended to put her in an unfavourable position. At the end, the Court held that notwithstanding the narrow margin of appreciation afforded to them, the domestic authorities provided relevant and sufficient reasons to justify the necessity of the measure. Thus, it concluded that there had been no breach of Article 1 of Protocol No. 12 to the Convention.

Comment

The present case gave a significant occasion for the Court to develop its case law concerning gender equality for two main reasons. First, it is the first case, in which the Court examined on the merits a complaint regarding discrimination on the ground of sex under Article 1 of Protocol no. 12 of the Convention. Second, it was also the first time the Court examined an alleged sex discrimination because of pregnancy in the field of employment. Yet, arguably, the present judgment fell short of taking a step forward to achieve de facto equality between men and women

Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct ‘factual inequalities’ between them. The Court has already acknowledged in its case law under Article 14 the need for protection of pregnancy and motherhood (see for example Khamtokhu and Aksenchik v. Russia [GC], para. 82; Konstantin Markin v. Russia [GC] para. 132; Alexandru Enache v. Romania, paras 68,76-77. This acknowledgement was ‘indirect’ as all the relevant cases concerned male applicants’ complaints against ‘positive discrimination’/’affirmative action’ measures that had been taken in favour of women. Whereas in the present case, the applicant was a woman who was subjected to difference in treatment at work because she was pregnant.

In the present judgment, the Court, while examining whether the difference in treatment had objective and reasonable justification, underlined that the termination of the applicant’s contract was prohibited, according to domestic law and the respondent State’s international commitments in the field of protection of pregnancy and maternity. The Court, in its reasoning, referred to the relevant Council of Europe material, such as Recommendation No. R(85)2 of the Committee of Ministers, European Social Charter; to the directives of the Council of the EU in matters of employment and occupation; and to CEDAW (para. 83). Moreover, the Court referred particularly to the case-law of the Court of Justice of the European Union, whose case-law is more developed on the matter of equality between men and women at work, and special protection for pregnancy (Under EU law, the protection against discrimination on the ground of sex has been considered as a fundamental aspect of the EU. The body of anti-discrimination law has evolved considerably to include areas such as pensions, pregnancy and statutory social security regimes). This part of the judgment can be considered significant as the Court set the principles as regards the prohibition of dismissal of women from their work on account of their pregnancy in the light of relevant regional and international law sources, which could be also relevant for future cases. Yet the Court held that the change in the applicant’s situation as regards her employment could not be equated with a loss of employment. Moreover, it considered that the applicant had not suffered any significant long-term setbacks in her diplomatic career on the grounds that she had a promotion in December 2007 while she was absent during her pregnancy, and in September 2016, about a year after her return to work.

The Court’s questioning on whether the applicant had suffered any significant setbacks in her career could be considered as a good sign, showing that the Court might also consider measures other than dismissal as discriminatory under different circumstances. However, it should be underscored that, in the present case, the applicant was initially nominated for a four-year post in Ljubljana, after having passed a competitive exam. As a result of the MFA’s decision in question in 2019, she was recalled to Bucharest in less than two years, as soon as she had announced her second pregnancy. The applicant had to reorganise her work and family life,[1] thus, it is hard to argue that the applicant did not have any setbacks in her career. The applicant was considered being ‘of little use to the diplomatic mission in Ljubljana’ because she had been frequently absent, by having taken pregnancy related sick leave, maternal leave and annual leave (which were her legal entitlements). It can be concluded that the applicant was treated less favourably compared to a man, since a man in the applicant’s position at work would not have suffered a similar disadvantage because of his sex. This situation created a de facto inequality between men and women that needed to be addressed carefully.

According to the Court’s case law, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow. Accordingly, the principle of proportionality requires that the measure in question should be suited to the fulfilment of the aim pursued, moreover, it must be shown that it was necessary in the circumstances. In the present case, the Court could have been more careful while assessing whether there was a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised. While the Court observed that the applicant’s absence from the office seriously affected consular activity in the embassy, it did not take into account whether this activity could have continued with a better organisation by the MFA as regards the replacements of diplomats, as claimed by the applicant (see para. 63). Notably, in December 2007, no replacement was sent from the MFA despite the ambassador’s request, and the consular section was closed as a result. However, once a replacement for the applicant started working on a temporary assignment, the consular section resumed its activities. Moreover, the domestic authorities did not argue that the consular services could not be carried out by a temporary replacement. In fact, the ambassador complained mainly of the additional cost for the MFA because of the need to replace the applicant on a temporary basis (para. 22). Under these circumstances, it is problematic that the Court did not discuss in detail whether the early termination of the applicant’s post abroad had been really necessary to realise the aim of helping Romanian nationals in need of consular assistance in Slovenia.

Although the Court underscored in Napotnik v. Romania that the dismissal on the grounds of pregnancy or of maternity leave is prohibited in the light of regional and international human rights documents and the EU anti-discrimination law, dismissal is not the only type of pregnancy discrimination that women suffer at work. To achieve substantive gender equality in the workplace, it should be also guaranteed that the women suffer no detriment in terms and conditions of their employment as a result of taking maternity leave (see the relevant provisions of Directive (EU) 2006/54/EC at para. 41, and the relevant provisions of the European Social Charter at para. 39). It appears that the Court did not underline this aspect in the present case, although it had a good opportunity to do so. Moreover, considering the narrow margin of appreciation afforded to the States on the matter, the Court should have carried out a detailed analysis on the necessity of the impugned measures resulting in difference in treatment on the grounds of sex, so as to help achieve de facto gender equality.

Conclusion

Gender discrimination in the workplace has been an important problem that needs to be tackled to achieve substantive equality between men and women, and the Court still needs to develop its case law concerning this issue. Although social and economic rights are not directly guaranteed under the Convention, the Court has increasingly developed, albeit limited, a case-law under Article 14[2] concerning gender equality in the field of employment and social policy (see for example Emel Boyraz v. Turkey and Hülya Ebru Demirel v. Turkey, and Konstantin Markin v. Russia [GC]).[3] As Article 1 of Protocol No. 12 also extends the scope of protection against discrimination to ‘any right set forth by law’, the Court might (potentially) have to deal with more cases concerning gender discrimination in the workplace in the near future.[4] Hopefully, the ECtHR could make a more significant contribution in future cases.

[1] If the applicant had raised Article 8 complaint in its initial application, the Court would have probably examined this aspect more in detail.

[2] Article 14 of the Convention merely complements the other substantive provisions of the Convention and the Protocols.

[3] The Court repeatedly stated in its case law under Article 14 that gender equality is today a major goal in the member States of the Council of Europe. See also the blogpost on the recent decisions of the European Committee of Social Rights concerning equal pay and equality of opportunity between women and men in the workplace by Maria Kotsoni https://strasbourgobservers.com/2020/10/05/placing-gender-equality-in-the-workplace-at-the-forefront-of-social-rights-in-europe-equal-pay-and-equal-opportunities-under-the-scrutiny-of-the-european-committee-of-social-rights/

[4] However, it should be also noted that Protocol no.12 has been ratified by 20 out of 47 member states of the Council of Europe.