In the judgment of May 7, 2019, file ref. II PK 31/18, the Supreme Court undertook to assess whether employing persons with a specific citizenship on different terms than persons without this citizenship constitutes a discriminatory practice.
The judgment was issued on the basis of the plaintiff’s cassation appeal against the judgment of the District Court. The case concerned the application by the Consulate of different working conditions in relation to German citizens and non-German citizens – the employer paid the former remuneration in marks, and then in euros, and provided for a shorter working time than in the case of other employees. In addition, both groups of employees performed work in comparable positions. On April 1, 2000, the Consulate introduced uniform rules for remunerating employees, regardless of the criterion of citizenship. However, this change did not apply to already employed German nationals.
The court of first instance ruled that the persisting differentiation in relation to employees who were German citizens employed before 1 April 2000 could not be explained by the protection of acquired rights, and therefore the employer did not seek to remove the state of discrimination. The second-instance court changed the judgment of the first-instance court in the part in which it concerned the qualification of the legitimacy of maintaining pay differentials, agreeing with the position that in this case there was protection of rights acquired by employees employed before the change in the collective agreement. In the opinion of the court, not changing the conditions of remuneration of these employees protected them against arbitrary limitation of the right acquired, i.e. the amount of remuneration.
The Supreme Court agreed with the view that historical events cannot justify the differentiation of employees in remuneration, if the employer adopted a passive attitude towards the problem and did not take actual actions to eliminate the pay gap. However, the court pointed out that this regularity refers to the principle of equal treatment in employment and does not necessarily have to be related to the prohibition of discrimination.
The obligation of equal treatment of employees by the employer is extensive – it does not exist only at the time of concluding the contract, but also before the employment relationship is established, during the entire duration of this relationship and at the time of termination of the employment relationship, and the employer’s task is to maintain the state of equal treatment throughout this period. period. Moreover, the intention of the employer remains irrelevant to the assessment of the event, therefore the fact that from the date of the amendment of the collective agreement the employer did not show any intention to discriminate against employees on the basis of nationality cannot affect the decision whether discrimination has taken place.
The court emphasized that the principle of protection of rights acquired rightfully did not apply in the present case. The employer was only dealing with binding contractual provisions which he had the power to amend. The Supreme Court did not find objective criteria justifying the different treatment of the two groups of employees, the application of which would be dictated by proportionality and necessity. Therefore, the employer’s action consisting in maintaining the state of differentiated treatment of German employees employed before 1 April 2000 was indirect discrimination – between the two groups of employees there was a disproportion unfavorable for one of them.
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