Recall of a diplomat from her position due to pregnancy. The different treatment was justified to ensure the operation of the embassy.

JUDGMENT

Napotnik v. Romania 20-10-2020 (app. no.  33139/13)

see here 

SUMMARY

The case concerned a diplomat’s allegation that she had been recalled from her post in the
Romanian Embassy in Ljubljana because she was pregnant.

The Court found that the applicant had been treated differently on grounds of sex, but that the
domestic authorities had sufficiently justified such difference in treatment by the need to ensure the
functioning of the embassy’s consular section, and ultimately to protect the rights of others, namely
Romanians in need of assistance abroad.

In any case, the applicant had not suffered any significant setbacks: she had neither been dismissed
nor disciplined, and had in fact been promoted twice.

PROVISION

Article 1 of the 12th Protocol

PRINCIPAL FACTS

The applicant, Oana-Cornelia Napotnik, is a Romanian national who was born in 1972 and lives in
Bucharest.

Ms Napotnik, a Romanian diplomat, was posted to Ljubljana in March 2007. She was in charge of
consular duties: her work mainly consisted in helping Romanian nationals who found themselves in
emergency situations, such as police detention, without identity papers, or hospitalised.
She married a Slovenian national in April 2007 and they had two children together, born in June
2008 and July 2009.

During her first pregnancy, she was absent from the office from November 2007 to February 2008,
partly because her obstetrician had ordered bed rest and partly because she took annual leave. The
consular services were suspended during that period and requests for assistance were redirected to
neighbouring countries. A temporary replacement was found for her when she went on maternity
leave in June 2008.

As soon as Ms Napotnik announced her second pregnancy in January 2009, the Ministry of Foreign
Affairs (“the MFA”) decided to terminate her posting in Ljubljana and recall 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.

She immediately requested parental leave and then leave to accompany her husband on a
diplomatic posting abroad, resuming her work in Bucharest in September 2015.

In the meantime, she had lodged a civil action against the MFA in September 2009, alleging that the
termination of her posting abroad was discriminatory because the only reason for it had been her
pregnancies. The courts dismissed her action, in a final judgment of November 2012, ruling that the
decision to terminate her posting had not been a disciplinary measure and had been taken with a
view to ensuring the functioning of the Ljubljana Embassy’s consular section.

Relying on Article 1 of Protocol No. 12 (general prohibition of discrimination), Ms Napotnik alleged
that she had been discriminated against at work, arguing that the sequence of events clearly
indicated that her diplomatic posting had been terminated because she was pregnant.

THE DECISION OF THE COURT…

The Court held that the case-law standards it had developed on the protection provided by
Article 14 (prohibition of discrimination) were applicable to cases brought under Article 1 of Protocol
No. 12. Among other things, it noted that for the purposes of Article 14, a difference in treatment
was discriminatory if it “has no objective and reasonable justification”.

The Government had acknowledged that Ms Napotnik’s pregnancy had played a role in the decision
to terminate her diplomatic assignment. Only women could be treated differently on that ground,
and the Court therefore considered that she had effectively been treated differently on grounds of
sex.

That difference in treatment could only however amount to discrimination if it had not been
justified. In the Court’s view, the domestic authorities had provided relevant and sufficient reasons
to justify the termination of her posting abroad.

Indeed, the decision had been necessary to ensure and maintain the functional capacity of the
embassy’s consular section, and ultimately to protect the rights of others, namely Romanians in
need of assistance abroad. Bearing in mind the nature of the applicant’s work and the urgency of the
requests she had been called upon to deal with, her absence from the office could jeopardise
consular services in the embassy. That had been clearly demonstrated when such services had had
to be suspended and requests for assistance redirected to neighbouring countries for a certain
period during her first pregnancy.

In any case, the consequences of the decision had not caused the applicant any significant setbacks.
She had not been dismissed, a decision which would have been expressly prohibited by the domestic
equal opportunity laws and in contravention of Romania’s international commitments. Nor, as
expressly reiterated by the domestic courts, had the decision been a disciplinary measure. She had in fact continued to be promoted by her employer, first in December 2007 while she had been absent during her first pregnancy, and again in September 2016, about a year after her return to work.

Accordingly, the Court held that there had been no violation of Article 1 of Protocol No. 12.

 


ECHRCaseLaw

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