Discrimination on the labour market is an increasingly accentuated problem not only in the Czech labour market. It may affect employees at different stages in their lives, where the employee may belong to different stigmatised groups. This classification varies depending on age and life situations.

Discrimination means treating people in the same or comparable situation differently, where there is no objective and reasonable ground for the difference[1] for reasons that are defined as discriminatory. Prohibition of discrimination, or more broadly put equal treatment, is one of the fundamental pillars of modern labour law. We can all agree that only a workplace, where employees are not illegitimately disadvantaged, can be considered a decent place to work. But how to recognize the line between equal and unequal or discriminatory treatment when it comes to the so-called “employer’s laws”, or internal regulations issued by the employer himself?

The road to hell is paved with good intentions, as the popular saying goes. It captures quite aptly the potential pitfalls of an employer’s efforts to motivate employees to higher performance or loyalty. Making financial bonuses or longer holidays conditional on ethnicity, gender or sexual orientation would strike just about anyone as unfair and unequal. However, discrimination may not always be so obvious. What if a well-intentioned employer wants to motivate its subordinates to perform better and reward their diligence by introducing a bonus in its internal regulations for employees who achieve the lowest number of missed hours? At first glance, this criterion may seem reasonable, because those who are absent from work only a little deserve to be rewarded. However, counter-intuitively, this is a situation in which a provision of an internal regulation is contrary to the Labour Code.

Without originally intending to do so, the employer has put at a disadvantage employees who cannot be flexible due to long-term illness or childcare, and thus indirectly also women, as they are statistically more likely to care for children than men are. The Anti-Discrimination Act considers both disability and gender to be inadmissible grounds for differential treatment and it would therefore constitute discrimination on the grounds of gender or health status.

Another example, which is not exceptional in the practice of labour law and has been dealt with by Czech courtsas well, is age discrimination. The Supreme Court has held[2] that conditioning an award of severance pay beyond the statutory entitlement on the age of the employee is discriminatory. Thus, an employer may not, for example, state in its internal regulations that only employees, who were not entitled to a retirement pension at the time of termination of employment, are entitled to severance pay in excess of the statutory limit. This would constitute prohibited discrimination based on a protected ground, since the adverse effects of this distinction would fall primarily on the group of employees defined by retirement age. Such differential treatment of employees cannot be objectively justified in any way. The consequence of a discriminatory internal regulation is its absolute nullity in all parts contrary to the law.

In order to assess the possible discriminatory nature of a particular internal regulation, it must always be borne in mind that each case must be assessed individually, since not every difference in treatment can be considered discriminatory[3], and a properly justified difference in treatment, for which there is an objective reason, cannot be considered discriminatory and is also permitted from the point of view of unequal treatment. Such objective reasons will be based primarily on the nature of the activity performed. A typical example might be a reward for higher performance, or a responsibility that an employee takes on.

In a democratic state governed by the rule of law, care must be taken to respect key principles, including the prohibition of discrimination, which of course does not primarily seek to enforce ineffective absolute equality, but aims to achieve a fair working environment.

[1] Ruling of the Constitutional Court of 21 January 2003, file no. Pl. ÚS 15/02.

[2] Judgment of the Supreme Court of 18 January 2017, file no. 21 Cdo 5763/2015.

[3] As also explicitly stated in the Anti-Discrimination Act, in the provisions of article 6 and 7. This can also be found in the judicature of the Constitutional Court, for example in the ruling of 30 April 2009, file no. II ÚS 1609/08.

Autor: Veronika Odrobinová, Gabriela Jandová