Andrzej Marian Świątkowski

Unequal treatment because of religion or belief

The article presents the legal opinions of two Advocates General (AG) of the Court of Justice of the European Union (CJEU) and two judgments of this court (CJEU) issued in cases C-157/15 and C-188/2015 in matters relating to religion. The main research method used in the article is the dogmatic method. The author analyzes the positions of two lawyers employed as AG CJEU in matters concerning the imposition of bans by entrepreneurs on persons employed, displaying religious symbols in places and time of work. The article is divided into five parts. In the first part, the author looks at legal concepts such as discrimination and religious freedom. In the second part, the reader is introduced to the essence of the dispute between entrepreneurs and employed believers of religion. The third part deals with the cases regulated by the provisions of Directive 2000/78/EC concerning lawful exceptions to the prohibition of discrimination. The fourth part is devoted to the policy of religious neutrality recognized by the European Union as a remedy between employers and employees. In the last, fifth part, the operative parts of the judgments of the Court of Justice are listed. CJEU rulings prohibit employees from wearing and displaying overly visible religious symbols. Failure to comply with this prohibition cannot be considered as direct discrimination on the basis of religion. The interest of the entrepreneur is not a sufficient justification for the parties to the re-employment relationship to reach an agreement, because the wearing of religious symbols by employees in the workplace cannot be considered as a “significant professional requirement.”

ASJC: 3308, JEL: K31

Collective agreements are normative agreements concluded by the social partners: employers or employers’ organisations and trade unions setting out the terms and conditions which should be satisfied by contracts of employment (normative provisions of the collective agreement), rights and obligations of the parties to a collective agreement (obligating provisions of the collective agreement) and other obligations of an employer to a group of workers (provisions included in a so called “third” part of the collective agreement). Collective agreements are negotiated acts of individual and collective labour law. Regulation of the contents of individual labour law through collective agreements is an alternative method of lawmaking. It guarantees better compliance of the social partners with the standards established as a result of the social dialogue

Counter-type for the prohibition of discrimination

According to the law (Article 183b of the Labour Code), the restriction of access to employment by churches and religious associations is not a violation of the principle of equal treatment. The exemption from the general obligation of such employers to treat all employees equally and at the same time granting permission to legally differentiate the situation of certain categories of people justifies a legal analysis of the situation in which religion and beliefs may be recognized in Europe by EU and state legislative institutions as compatible criteria for employers to make decisions on matters relating to the establishment and termination of employment relationships. Excluding the unlawfulness of the employer’s conduct in employment relations, the legislator used the legal construction of excluding unlawfulness, used in the provisions of criminal law (a counter-type). The author discusses situations in which some employers, when committing acts that formally cover the features of one of the statutory types of legally prohibited activity in employment relationships, de jure act in accordance with the law.

ASCJ: 3308, JEL: K31

In all EU Member States the status of people employed on job platforms is not fully legally regulated. It is necessary to consider the sources of the contemporary phenomenon of electronic employment, which is not amenable to legal regulation in the Union constituting an “area of freedom, security and justice with respect for fundamental rights” (Art. 67 (1) of the Treaty on the Functioning of the European Union). The right to work in decent conditions, with adequate remuneration, belongs to this category of rights. In the discussion on employment platforms state authorities are more inclined to consider issues related to new technologies, processes and changes caused by the development and application of modern digital technologies (digitization) in almost all areas. The headquarters of trade unions mainly discuss the legal position of employees and the role of employment platforms in employment relations in the post-industrial era. Entrepreneurs and their organizations, including private institutions and employment platforms, are interested in equal treatment by national legislators in local labour markets. They are afraid of the breach of the balance favorable to their own economic interests, caused by the public interest in the possibility of using employment in atypical forms of employment. Services consisting in employment provided under employment platforms are incomparably cheaper than identical work performed by employees employed under employment contracts.