Refusal to pay benefits to a pregnant woman on the grounds that she fraudulently found a job since she was in the process of in vitro fertilization! Illegal discrimination on the grounds of sex at work
JUDGMENT
Jurčić v. Croatia 04.02.2021 (app. no. 54711/15)
SUMMARY
Gender discrimination at work. Refusal of social security to pay legal benefits to the employee – applicant for the period of absence from work while on maternity leave. The domestic authorities considered that the employment contract was a sham and should not look for work while she was in the process of in vitro fertilization. The applicant filed a complaint for illegal discrimination on the grounds of sex.
Strasbourg pointed out that a decision to deny employment insurance status which had been declared fictitious because of pregnancy constituted different treatment on grounds of sex. It also stressed that pregnancy itself should never be seen as fraudulent and the state has no legitimacy to treat it differently because of gender.
The ECtHR held that the applicant’s assumption of employment could not be fraudulent and fraudulent, nor did it have the obligation to inform the employer of the IVF procedure being submitted. The Court emphasized that the denial of employment or recognition of an employment-related benefit to a pregnant woman was not objectively justified, which constituted unlawful discrimination and a violation of Article 14 of the ECHR.
PROVISIONS
Article 14
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Kristina Jurčić, is a Croatian national who was born in 1975 and lives in Rijeka (Croatia).
The applicant was employed almost continuously from 1993 until 1 November 2009. On 17 November
2009 she underwent in vitro fertilisation (IVF). On 27 November the applicant took up a position with
a company in Split and was then registered with the Croatian health-insurance scheme. She learned
about her pregnancy in December and sick leave was prescribed owing to pregnancy-related
complications.
The applicant applied for payment of hersalary during hersick leave. The authoritiesthen took it upon
themselves to review the applicant’s health-insurance status. They denied her employment insurance
altogether, considering that her employment was fictitious and aimed solely at securing payment
during pregnancy. They also held that she had been medically unfit to take up work in a distant town
owing to the IVF process.
The applicant appealed to the courts, arguing that she had been discriminated against as a woman
who had undergone IVF. The High Administrative Court dismissed the action, which was later upheld
by the Constitutional Court.
The applicant also turned to the Gender Equality Ombudsperson, who found that the authorities’
interpretation of the applicant’s situation had been based on the premise that every woman who was
undergoing IVF or pregnant would in reality not be employed by any employer.
Relying on Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article
1 of Protocol No. 1 (protection of property) to the Convention, the applicant complained of the revocation of her health-insurance status, stating that it had been a result of discrimination against her as a woman undergoing in vitro fertilisation.
THE DECISION OF THE COURT…
The Government argued that the applicant had been treated in the same way as any woman who
sought to profit from fictitious employment contracts. The decision had been taken to protect the
public purse.
The Court firstly noted that a decision refusing insurance status on grounds of employment which had
been declared fictitious due to the applicant’s pregnancy could only be made in respect of a woman.
In the applicant’s case such a decision had thus constituted a difference in treatment on grounds of
sex. It furthermore stressed that actual pregnancy itself could not be fraudulent, and that the financial
obligations imposed on the State during a woman’s pregnancy by themselves could not constitute
sufficiently weighty reasons to justify difference in treatment on the basis of sex.
In the applicant’s case, the Court noted that the applicant had taken up employment a short time after
undergoing IVF and that the authorities had been entitled to verify the validity of the facts on which
she had been insured. At the same time, it considered the Administrative Court’s case-law submitted
by the Government to be generally problematic, asit indicated thatsuch reviewsin practice frequently
targeted pregnant women.
The Court noted that, in deciding the applicant’s case, the domestic authorities had limited themselves
to concluding that, owing to the IVF procedure, she had been medically unfit to take up the position
in question, implying that she had to refrain from doing so until her pregnancy had been confirmed.
That approach had been in direct contravention of both domestic and international law and had been
tantamount to discouraging the applicant from seeking employment owing to her pregnancy. This
alone was in the Court’s view sufficient to conclude that the applicant had been discriminated on the
basis of her sex.
In addition, the Court noted that the Croatian authorities had failed to show how the applicant’staking
up employment could have been fraudulent since she could not have known when entering into
employment whether the IVF procedure had been successful and had not been under any legal
obligation to inform her employer about it. Nor had the authorities examined whether she had in fact
commenced work or whether the IVF she had undergone had necessitated her absence from work
due to health reasons.
Lastly, the Court cautioned that gender stereotyping by the authorities as observed in the applicant’s
case presented a serious obstacle to the achievement of real substantive gender equality, one of the
major goals of the member States of the Council of Europe.
Stressing that a refusal to employ or recognise an employment-related benefit to a pregnant woman
based on her pregnancy, amounts to direct discrimination on grounds of sex,the Court concluded that
the difference in treatment of the applicant had not been objectively justified, leading to a violation
of her Convention rights.
Separate opinions
Judge Wojtyczek expressed a concurring opinion, which is joined to the judgment.
Just satisfaction (Article 41)
The Court held that Croatia was to pay the applicant 7,500 euros (EUR) in respect of non-pecuniary
damage and EUR 1,150 in respect of costs and expenses.
