Situ­ation

A Pol­ish self-employed per­son worked for a Pol­ish broad­caster on the basis of ser­vice con­tracts for a con­sid­er­able time. At this broad­caster, the self-employed work­er per­formed ser­vices with­in the edit­or­i­al and advert­ising depart­ment. In 2017, the broad­caster can­celed his ser­vices the day before a week in which he was sched­uled to work and also stopped offer­ing him new assign­ments. The self-employed per­son believed this was because shortly before, he and his part­ner had cre­ated and pos­ted a Christ­mas song on their You­Tube chan­nel pro­mot­ing tol­er­ance for same-sex part­ners. The accom­pa­ny­ing video clip showed same-sex part­ners cel­eb­rat­ing Christ­mas. The self-employed per­son opposed the sud­den ter­min­a­tion of the assign­ment and claimed dam­ages.

A dis­cus­sion arose before the Court as to wheth­er Art­icles 3 and 17 of the European Dir­ect­ive on Equal Treat­ment in the Work­place (“the Dir­ect­ive”) apply, since the man did not have an employ­ment con­tract, but a ser­vice con­tract. Accord­ing to the com­pany in ques­tion and the Pol­ish gov­ern­ment, such pro­tec­tion is excluded in such con­tracts. The Court was faced with the ques­tion: is a self-employed ser­vice pro­vider entitled to the same pro­tec­tion from dis­crim­in­a­tion in the work­place as an employ­ee? And how does this relate to entre­pren­eur­i­al free­dom for free choice of con­tract?

 

Ver­dict

The answer to the first ques­tion is yes. Accord­ing to the Court, the term ’employ­ee’ in the Dir­ect­ive should be inter­preted broadly, so that it can also include the self-employed work­er. The Court bases this on the fact that it does not mat­ter what kind of con­tract the ’employ­ee’ has. Under European law, the self-employed can also be giv­en the same pro­tec­tion as ’employ­ees’. The free­dom of entre­pren­eur­ship and free choice of con­tract offer no jus­ti­fic­a­tion for not offer­ing a con­tract to self-employed work­ers because of their sexu­al ori­ent­a­tion.

It is also import­ant to note that the aim of the Dir­ect­ive is not ‘work­er pro­tec­tion’ but the elim­in­a­tion of dis­crim­in­a­tion-based obstacles to access to means of sub­sist­ence and the abil­ity to con­trib­ute to soci­ety through work, regard­less of the leg­al form in which that work is car­ried out. The pre­requis­ite is that the pro­fes­sion­al activ­ity is real and is car­ried out in the con­text of a leg­al rela­tion­ship char­ac­ter­ized by a degree of sta­bil­ity. Per­form­ing a “mere ser­vice” or sup­ply­ing goods is not suf­fi­cient.

 

Con­sequences for work or prin­cipals

In doing so, the Court sends a clear mes­sage to work­places and cli­ents. They may not treat self-employed work­ers dif­fer­ently because of their reli­gion, belief, dis­ab­il­ity, age or sexu­al ori­ent­a­tion – regard­less of the type of con­tract they enter into with them. Once again, case law is tak­ing anoth­er step to pro­tect self-employed work­ers, mak­ing the dif­fer­ence between them and per­man­ent work­ers ever smal­ler.

 

ESG

HVG Law endorses the import­ance of ESG in the work­place. By work­ing with a team of ESG spe­cial­ists, HVG Law is able to help its cli­ents meet the highest stand­ards of ESG. In addi­tion, cor­por­ate respons­ib­il­ity is inher­ent in the val­ues with­in HVG Law and the way HVG Law con­ducts busi­ness. We are always happy to think with employ­ers to encour­age and intro­duce ESG in the work­place.

On the basis of this decision of the European Court of Justice, it is import­ant for employ­ers to review their exist­ing Whis­tleblower reg­u­la­tions and check wheth­er these reg­u­la­tions are suf­fi­ciently ESG proof. It goes without say­ing that we are happy to assist you with any such ser­vices.