ECHR Article 14
Discrimination
Failure to enforce a judgment acknowledging gender discrimination against a working mother: violation
Facts – In February 2003, relying on the labour regulations, the applicant asked her employer for a reduction in her working hours as she had custody of her son, who was under the six-year age-limit. When her employer refused, she brought proceedings before the Employment Tribunal, but her complaint was dismissed. In a judgment of 2007 the Constitutional Court upheld the applicant’s amparo complaint. It found that the principle of non-discrimination on grounds of sex had been breached in respect of the applicant, as her employer had prevented her from reconciling her professional life with her family life. It remitted the case to the Employment Tribunal for a new judgment. In 2007 the Tribunal dismissed the applicant’s case and she lodged a fresh amparo appeal. In 2009 the Constitutional Court found that its 2007 judgment had not been properly enforced and declared null and void the Employment Tribunal’s judgment. It decided, however, that it would not be appropriate to remit the case to the Employment Tribunal for a further decision, as in the meantime the applicant’s son had reached the age of six. It further ruled that it could not award compensation in lieu as this was not permitted by the Institutional Law on the Constitutional Court.
Law – Article 14 in conjunction with Article 6 ss 1: The State was required to enable applicants to obtain due enforcement of decisions given by the national courts. The Constitutional Court had found, in its 2009 decision, that the applicant’s right to the enforcement of its first judgment, acknowledging a violation of the non-discrimination principle, had been breached. A decision or measure in an applicant’s favour did not deprive him or her of ‘victim’ status unless the authorities had recognised, expressly or in substance, and then remedied the violation of the Convention. The violation found by the Constitutional Court had not to date been remedied in spite of two judgments by that court.
The applicant’s initial intention had not been to obtain compensation but to seek recognition of her right to reduced working hours so that she could look after her son when he was still under six. She subsequently submitted a compensation claim only because she no longer qualified for the reduction in working hours, as her child had passed the age-limit. The Constitutional Court, having refused her compensation in its decision of 2009, did not give her any indication about the possibility of taking her claim to any other administrative or judicial body. It was true that because of the child’s age at the end of the proceedings it was no longer possible to grant alternative redress for the acknowledged breach of the applicant’s right. Nor could the Court could indicate to the respondent State how redress in the context of amparo complaints should be provided. It simply observed that the protection provided by the Constitutional Court had proved ineffective. Moreover, the applicant’s claim before the Employment Tribunal regarding the refusal to grant her a reduction in working hours had not been settled on the merits, even though the two unfavourable judgments of the Employment Tribunal had been declared null and void. In addition, her amparo appeal had proved meaningless, as the Constitutional Court had considered that the law did not provide for compensation as a means of redress for a breach of a fundamental right. Accordingly, the failure to restore to the applicant her full rights had rendered illusory the protection provided through the upholding of an amparo complaint by the Constitutional Court.
Conclusion: violation (unanimously).
Article 41: EUR 16,000 in respect of non-pecuniary damage.
Discrimination (Article 8)
Citations:
38285/09 – Legal Summary, [2013] ECHR 395
Links:
Statutes:
European Convention on Human Rights 6-1 14
Human Rights, Discrimination, Employment
Updated: 05 December 2022; Ref: scu.491922
