The ECHR Ruling of February 04, 2021 in the case "Jurcic v. Croatia" (aplication No. 54711/15).
In 2015, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Croatia.
In the case, an aplication was successfully considered against the refusal to obtain the status of an insured employee and payment of material benefits related to work on the basis of the applicant's employment, which was recognized as fictitious due to the fact that the applicant was pregnant. The case involved a violation of the requirements of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant signed an employment contract ten days after she underwent the in vitro fertilization procedure (hereinafter referred to as the IVF procedure). When the applicant subsequently went on sick leave due to complications of the pregnancy process, the relevant Croatian authorities reviewed the applicant's status in relation to her health insurance. They concluded that by signing the employment contract immediately after the IVF procedure, the applicant only intended to receive material benefits related to the status of an employee, and that therefore her employment was fictitious. Thus, the applicant's application for her registration as an insured employee and the application for payment of salary compensation in connection with being on sick leave were rejected. The applicant unsuccessfully appealed the relevant decisions.
Regarding compliance with article 14 of the Convention, considered in conjunction with article 1 of Protocol No. 1 to the Convention
(a) Whether there was a difference in attitude. The applicant was denied the status of an insured employee and the payment of material benefits related to work on the basis of her employment, which was recognized as fictitious due to the fact that the applicant was pregnant. Such a decision could only be made in relation to women. Consequently, it represented a difference in attitude based on the gender of the person.
(b) Whether the difference in attitude was justified. The Croatian authorities argued that the decision to change the applicant's insurance status was legally aimed at protecting public resources from fraudulent use and ensuring the overall stability of the health system. The European Court stressed that a woman's pregnancy as such could not be considered fraudulent behavior and that the financial obligations imposed on the State authorities during a woman's pregnancy could not in themselves be sufficiently compelling reasons to justify a difference in attitude towards people based on gender.
Even if we assume that the European Court as a whole would be ready to recognize the legitimate purpose of protecting public funds, it should have been established whether the measure being appealed was necessary to achieve this goal, taking into account the little discretion granted to States in cases where different attitudes towards people are due to their gender.
It was precisely because of the fact that the applicant entered into a new employment relationship and shortly thereafter demanded payment of the material benefits in question in the case, the relevant Croatian administrative authorities initiated a review of the applicant's medical insurance status, suspecting that her employment contract was concluded only for the purpose that the applicant could receive the material benefits in question. According to the applicable Croatian legislation, the relevant State authorities had the right to check whether the facts on which the person concerned based his medical insurance status were valid. However, in practice, such an inspection was often directed against pregnant women and women who signed an employment contract in the late stages of pregnancy or with close family members, and these categories of workers were automatically classified as "suspicious", whose employment required verification. This approach was generally problematic.
In the present case, the Croatian authorities concluded that the applicant was unfit for work from the date she signed the employment contract, since the applicant's doctor recommended her to rest after the applicant had undergone IVF procedure ten days before employment. In particular, the Croatian authorities referred to the fact that the applicant was expected to work at the head office of her employer, located far from the applicant's place of residence, and that long trips in her condition could reduce the chances of a successful outcome of the IVF procedure. In principle, even if the availability of an employee was a prerequisite for the proper performance of an employment contract, the protection provided to women during pregnancy could not depend on the question of whether her presence at the workplace during her pregnancy was essential to ensure the proper quality of her employer's work, or on the fact that the applicant was temporarily unable to perform the work duties for which she was hired. Moreover, the introduction of maternity protection measures was necessary to maintain the principle of equal treatment of men and women in employment.
Having concluded that, as a result of the IVF procedure, the applicant was not medically fit to carry out the work duties in question, the Croatian authorities assumed that the applicant should have refrained from employment until the pregnancy was confirmed. This conclusion directly contradicted both Croatian legislation and international law. Also, the conclusion in question was equivalent to depriving the applicant of the intention to look for a job due to the fact that she could possibly be pregnant.
All of the above was sufficient to conclude that the applicant had been discriminated against on the basis of gender. However, the European Court considered it necessary to point out a number of additional factors that made the difference in treatment in the applicant's case even more noticeable:
- during the 14 previous years during which the applicant worked, she regularly made contributions to the compulsory health insurance fund. Thus, it could not be argued that the applicant had not contributed to the insurance fund.
- When the applicant signed the employment contract, she could not know in any way whether the IVF procedure would be successful and whether it would lead to pregnancy. Moreover, the applicant could not have known that her future pregnancy, if it had taken place, would be accompanied by such complications that would force the applicant to take long-term sick leave.
- Considering the applicant's case, the Croatian authorities did not explain exactly how the applicant could knowingly fraudulently conclude an employment contract without even knowing whether she would become pregnant, especially given that the applicant was not legally obliged to report at the conclusion of the employment contract that she had undergone IVF procedure or that she was pregnant. Croatian legislation prohibited an employer from demanding any information concerning a woman's pregnancy. Indeed, asking a woman about her possible pregnancy or pregnancy planning or imposing on her the obligation to provide such information at the time of employment would also constitute direct discrimination on the basis of gender.
- The Croatian authorities drew conclusions in the applicant's case without assessing whether she had actually begun to perform her work duties and fulfill the instructions of the employer; they also did not establish whether the IVF procedure made it mandatory for the applicant not to appear at work for health reasons. Also, nothing in the case file indicated that women who underwent the IVF procedure, in general, could not work during the fertilization procedure or pregnancy.
- In conclusion, the European Court expressed concern about the general tone of the conclusions of the Croatian authorities, which implied that women should not work or look for work during pregnancy or if pregnancy is possible. Such a gender stereotype represented a serious obstacle to achieving real substantive gender equality, which was one of the main goals of the member States of the Council of Europe. Such reasoning not only contradicted Croatian legislation, but also did not comply with international standards of gender equality.
(c) In the end. Refusal to hire or recognize the legality of work-related payments to a pregnant woman because of her pregnancy was direct discrimination based on gender, which could not be justified by the financial interests of the State. The European Court also noted a similar approach in the case law of the Court of Justice of the European Union and in other applicable international standards. Consequently, the difference in treatment to which the applicant was subjected as a woman who became pregnant as a result of the IVF procedure was not objectively justified or necessary.
The requirements of article 14 of the Convention were violated in the case (adopted unanimously).
By way of application of Article 41 of the Convention, the European Court awarded the applicant 15,000 euros in compensation for non-pecuniary damage.