Employees usually have different qualifications. They have, also as a rule, different tasks assigned to them. Sometimes, however, their qualifications and duties coincide. In these cases, at least in theory, one of the fundamental principles of Labor Law is activated: the principle of equal treatment. Under this principle, unequal treatment of comparable employees by the employer is not allowed. It is often identified, even in legislative texts, with the principle of non-discrimination (on which our previous article).
What is the content of the principle of equal treatment? What has that got to do with non-discrimination? And what, after all, is the (relevant) situation in our country?
The content of the principle of equal treatment
The content of the principle of equal treatment in the context of the employment contract is determined by the case law (ind.: Supreme Court 1031/2012): Based on this principle, the employer is not allowed to treat unequally employees of the same holding. As long as they have the same qualifications but also as long as they provide the same services – under the same conditions.
A basic condition for the application of this principle of equal treatment is that the benefit provided by the employer is not required by law. That is, it must be provided voluntarily, in other words, it must be granted on the employer’s own initiative (ind.: 536/2018 Supreme Court, 673/2014 Supreme Court, 808/2012 Supreme Court).
Based on the above principle, then, the employer should extend to all employees, who provide the same work under the same conditions and having the same qualifications, any salary benefits (eg wage development, benefits-such as extra allowances for extreme working conditions, shifts). Also, any other service benefits (eg promotions). And all this, regardless of whether it is unilateral voluntary benefits of the employer or benefits that they have contractually undertaken towards certain employees (int.: 1554/2004 Supreme Court).
On the other hand, this principle is not violated when those who are excluded from certain benefits belong to a different category of employees and provide different work (248/2008 Supreme Court).
Finally, it should be noted that a specific deviation from this principle is possible when it is adequately justified by a specific and serious, objective, reason (inter: 673/2014 Supreme Court, 1031/2012 Supreme Court, 1144/2012 Supreme Court).
Equal treatment in practice
It is true that there is no other Authority more competent than the Ombudsman, to express an opinion on Equal Treatment, its implementation and its violations.
The most recent, relevant, Report is the one that refers to 2020: a year with peculiarities and difficulties – because of the pandemic and the measures that accompanied it. According to the information note of the special report on equal treatment in 2020: “As early as the beginning of 2020, the disproportionately severe consequences of the pandemic, which threaten socially vulnerable groups or groups with special characteristics, became apparent.”
The persons for whom special planning was required by the State were (among others): “Employees belonging to vulnerable groups, employees / parents, employees with children or a spouse with a disability…”
The findings are extremely interesting, especially in the field of work, as: “… a significant percentage of the reports received by the Ombudsman are directly related to the effects of the pandemic and the measures taken to deal with it (: special leave, special purpose leave, increase in incidents of domestic violence…). In labor disputes, the new element relates to complaints and concerns abusive dismissals or changes that have occurred in the detriment of employees who have received special leave.
Complaints of discrimination between men and women concern: “dismissals of pregnant women or protected mothers, difficulties in professional development or in occupying or retaining positions of responsibility of working mothers or women, as well as changes to their detriment after returning from maternity leave. Also: “unfavorable treatment of mothers after returning from a special purpose leave or the abusive suspension of pregnant women”. Finally, “difficulties in obtaining maternity leave or benefits are identified, in connection with the difficulties of easy access to services during the imposition of restrictive measures”.
Based on the data of the special report of the year 2020, it appears that, during the specific year, 951 new reports were submitted to the Ombudsman. The majority of them concern cases of discrimination based on gender (51%). 73% are directed against public bodies and services and 27%, only, against individuals. However, the reports of gender discrimination in the private sector account for an even higher proportion: 69%. In more detail:
2021, however, contributed an extremely important event: the passing of the recent labor law (: 4808/21). The relevant legislative improvements are expected to have a positive effect, as assessed, in “mitigating and streamlining the large and often unjustified differences that exist between categories of public and private sector employees, in matters of maternity leave, upbringing or other family benefits”.
The data for the current year are expected to prove (?) the expectations of the Ombudsman. The time is near…
Legislative basis of the principle of equal treatment
The principle of equal treatment could not have a stronger legal basis:
According to the Treaty on the Functioning of the European Union (art. 157): ” Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”.
According to the Greek Constitution: “Greeks are equal before the law” (art. 4 §1 Constitution) and “All employees, regardless of gender or other differences, have the right to equal pay for work provided of equal value” (art. 22 §1 in fine Constitution).
According to case law, the principle of equal treatment derives (also) from the provision of article 288 of the Civil Code. According to the latter, “the debtor has an obligation to fulfill the benefit as required by good faith, taking into account the commercial practices “.
Equal treatment and non-discrimination: identification (?) And / or confusion (?)
The principle of non-discrimination is only a subset of the principle of equal treatment (ECJ: C-441/14).
The two principles are partially identical. Regarding the introduction, in particular, of restrictions on the exercise of the managerial right: the treatment of employees in a comparable position must be uniform. It is this obligation that results in the restriction of business freedom itself.
The EU legislator seems to almost identify the same principles. Directive 2000/78 (on the scope of which we referred to in our above-mentioned article) states that (art. 2 §1): “The principle of equal treatment means the absence of direct or indirect discrimination for one of the reasons set out in 1” (ie due to religion or beliefs, special needs, age or sexual orientation).
The affinity of these specific principles, but also, in particular, the confusion as to their identification, is exacerbated by the legislative environment itself: Laws incorporating Anti-Discrimination Directives into national law (which we also analyzed in our above article) attribute to the Ombudsman the special responsibility of combating discrimination and the application of equal treatment (: no. 14 Law 4443/2016, 25 Law 3896/2010). The competence also to issue special reports, regarding its action in both the private and public sector and the labor relations in the specific sectors (already from the year 2005-and the entry into force of law 3304/2005, as replaced by Law 4443/2016).
The differences of the two principles
It is rightly argued, in our opinion, that the two principles, although related, differ in terms of mission, operation and conditions of their application (inter: Zerdelis, Labor Law, Individual Labor Relations, 2019, p. 307).
The basis and targeting of the two principles
The principle of equal treatment derives, as already mentioned, from the constitutional principle of equality. It therefore aims to achieve the principle of “distributive justice” in the workplace. For this reason, moreover, it is usually applied in the field of voluntary benefits provided by the employer (446/2019 Supreme Court).
On the contrary, the principle of non-discrimination derives, in principle, from the (also constitutionally provided) recognition of human dignity (: art. 2 §1 Constitution). It is intended, therefore, primarily to protect an employee from being treated unfairly because of a particular feature.
The scope of the two principles
The principle of equal treatment seems to have a limited scope. In particular, this principle can be applied only to active employment relationships. That is, it is not possible to apply it during the recruitment procedure, before it or at the time after the termination of the employment contract (inter: 853/2020 Court of Appeal of Thessaloniki, 1080/2011 Supreme Court).
The principle of non-discrimination is characterized, on the contrary, by the time span of its application. It is applied before the conclusion of the employment contract, during its force and during its termination. The recent labor law is a tangible, relevant example (: Law 4808/2021). The prohibited grounds for termination of the employment contract include cases where the termination “… is due to discrimination for one of the reasons provided in Article 1 of Law 4443/2016… as a countermeasure to a complaint or request for legal protection, to ensure compliance with the principle of equal treatment, in accordance with article 10 of law 4443/2016”.
The scope of the principle of non-discrimination is also found in an additional point. The principle of equal treatment presupposes benefits for some employees, from which the employer excludes unjustifiably comparable employees. On the contrary, the prohibition of discrimination concerns every individualized and individual employment relationship, without requiring a decision of the employer for collective, for example, benefit.
The possibility of limiting the two principles
The principle of equal treatment and that of non-discrimination also differ regarding the possibility of their restriction.
The principle of equal treatment may be restricted by the employer themselves if there is an objective reason. In particular, the reasons which the employer may rely on to justify the difference in treatment do not constitute numerus clausus. On the contrary, the purpose of each benefit which they provide may justify any unequal treatment (eg financial benefits in order to retain certain categories of workers, who, according to the criteria of the labor market, are not easily available).
On the contrary, exceptions to the application of the prohibition of discrimination are explicitly (and restrictively) provided by law. Such a case of non-prohibited discrimination is the different treatment on the basis of a protected criterion, which is linked to some essential and crucial professional condition [e.g. for the distribution of the role of a young man of color, of a racial origin and age in a play are, decisively, according to the above, a professional requirement (art. 4 of Directive 2000/78 and art. 4 of law 4443/2016)]
The principle of equal treatment of employees is enshrined, as extremely important, by law of higher order in the hierarchy of legal norms. Its affinity with the prohibition of discrimination is clear. To such an extent, in fact, that even in important legislative texts it seems that their meanings are identical or, as the case may be, confused. There is no doubt, however, that the principle of non-discrimination is only a special manifestation of the principle of equal treatment.
The competent Body (: Ombudsman) records, manages and groups the relevant complaints. Let us not forget, however: There cannot be 951 (only) cases of violation of the principle of equal treatment in our country – as many, that is, as are the relevant reports to the Ombudsman.
The recent labor law has further shielded the principle of equal treatment.
And, although the omens are not positive – at least in the short term, let us hope that the incidents of its violation (and not only the relevant complaints) continue to decrease. For the benefit not only of the employees but also, of course, of the smooth and efficient operation of the businesses.
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 9th, 2022).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.
