Due to its short application period and despite the originally estimated increase of court litigations in the area, the judicial practice of Czech Courts with respect to the Anti-discriminatory Act No. 198/2009 Coll., (effective as of 1.9.2009) remains quite limited.
All the more any court ruling of higher instance court dealing with the issue of discriminatory practice, respectively defining where is the border between the discriminatory and anti-discriminatory practice, is welcomed with large attention.
First from the recent rulings of the Highest Court dealt with discriminatory practice within selection process of redundant employee (Ruling NS, 21 Cdo 4574/2010).
The plaintiff in this case demanded the declaration of invalidity of the termination notice from her employment relation, including the invalidity of the declaration of the employer on the cancellation of her position which had been precedent to the employment termination notice. According to the plaintiff, the employer acted discriminatory by making the decision on her redundancy followed by the employment termination notice and therefore both acts should be seen as invalid due to their breach of legislation.
The first instance court found the petition as justifiable, while the appeal court had rejected it. Following an extraordinary appeal of the plaintiff, the matter was further submitted to the Highest Court for ruling.
The Highest Court supported the findings of the appeal court and stressed out that the decision by which the selection of redundant employees should be made is exclusively within the powers of the employer, who is fully entitled to correct the number of his employees and the court does not have any powers to review such decision of the employer.
Pursuant to the Highest Court, any court review in such matter should be limited only to review of material facts of the termination notice, i.e. whether the employer had accepted a relevant decision on the cancelation of the working position prior to the granting of the termination notice to the employee (if such decision concerned the change of the employees working tasks, change in the technical equipment or reducing the number of employees or other organisational changes) and whether such decision had been made by the authorised representative of the employer.
The Highest Court ruled that the decision of the employer on the redundancy of his employees represents a right of the employer to regulate the number of his employees and their qualificatory composition and therefore cannot be as a matter of fact considered as discriminatory action pursuant to the Labour Code and/or the Anti-discriminatory Act.
Discrimination of job applicant
In one of its other decisions the Highest Court dealt with the discrimination of a job applicant which is an area close to the labour law relations (Ruling NS, 21 Cdo 4586/2010).
The plaintiff demanded a compensation for immaterial damage due to discriminatory actions caused to her by the defendant during the staff selection process.
During the staff selection process, the defendant sent to the plaintiff, as well as to all of the other job applicants, an invitation to a job interview exclusively via email and less than 24 hours in advance. The plaintiff missed the term of the job interview. According to her, an electronic form of communication should not be considered as standard and adequate to the personal and wealth status of the plaintiff and the plaintiff therefore had been handicapped opposed to the other job applicant who have at home their own PC with Internet connection.
The court petition had been dismissed by the courts of a lower instance. Based on the extraordinary appeal of the plaintiff, the matter was further submitted to the Highest Court for ruling. The Highest Court stressed out that the action of the defendant can be considered as inadequate, but furthermore „not every mistake of the employer during a staff selection process, or its nonstandard procedure, should be seen as discriminatory“.
The Highest Court stressed out, in compliance with the rulings of the lower instance courts, that in order to conclude that the actions of the defendant against the plaintiff were discriminatory, it is material to assess whether the motive for the actions of the defendant was discriminatory – the wealth status of the plaintiff.
It showed during the proceedings that the plaintiff herself had made her job application with the defendant via electronic communication and did not stress out in any way during the selection process that she does not owe a computer and does not have an all-day access to her electronic mail. Therefore the defendant could not been aware of the status of the plaintiff and therefore this could not be a motive behind his actions against her.
The Highest Court concluded that the actions of the defendant, i.e. the circulation of the invitation for a job interview on a short time notice and exclusively by electronic mail, could not be a discriminatory, respectively that the wealth status of the plaintiff could not be the ground of the actions of the defendant.
Based on the above, the Highest Court made a general conclusion that „a conduct by the employer cannot be deemed discriminatory where the motivation for it is not a factor seen by the job applicant as a discriminatory ground even though, if it had been known to the employer, it otherwise could be considered as a factor that could be, objectively speaking, eligible as a discriminatory ground“.
It follows from the conclusions made by the Highest Court that in case the factor of the unfavourable wealth status of the plaintiff described above had been known to the defendant, it could be considered as justifiable discriminatory ground for its actions.