Request for a preliminary ruling
Before a Polish District Court compensation was claimed by a self-employed person for damage resulting from a company’s refusal to renew a contract for specific work on the ground of his sexual orientation. Since no new contract was concluded with the self-employed person after he and his partner had published a music video aimed at promoting tolerance towards same-sex couples, discrimination was invoked. The Polish Court brought the case before the European Court of Justice by a request for a preliminary ruling.
Decision of the European Court
Firstly, the European Court stated that the conditions for access to any occupational activity, whatever the nature and characteristics of such activity, are covered by the European Directive. The conclusion of a contract for specific work with a self-employed person is therefore protected by the Directive. Furthermore, the Court stated that an involuntary termination of activity of a self-employed person may be assimilated to dismissal of an employee. The Court concluded that the freedom to choose a contracting party, as guaranteed by the Polish anti-discrimination law, would deprive the Directive of its practical effect if it allows a refusal to contract with a person on the ground of that person’s sexual orientation.
This European judgement is a reminder for EU companies to pay attention to equality and inclusion and to avoid any hint of unequal treatment on one of the protected grounds (such as religion or belief, disability, age or sexual orientation). Internal policies in this respect should be drafted in a broad manner and should also include self-employed persons. Considering the European case law, directors of management companies could seek protection against discrimination in the event that their management agreement is terminated.
If you have any questions on the above or if you are in need of assistance, feel free to contact one of our colleagues in the Employments & Benefits team. We are glad to assist.