Ochrona przed dyskryminacją w zatrudnieniu
w świetle standardów Europejskiej karty społecznej
Artykuł poświęcony jest analizie prawa do równości i ochrony przed dyskryminacją w zatrudnieniu w świetle Europejskiej karty społecznej. Prawa te są podstawowymi prawami człowieka o kluczowym znaczeniu, uznanymi w konstytucjach wszystkich państw członkowskich UE i EOG z wyjątkiem trzech oraz w większości międzynarodowych instrumentów praw człowieka. Celem artykułu jest kompleksowe ujęcie relacji między standardami Europejskiej karty społecznej w świetle interpretacji jej postanowień dokonywanej przez Europejski Komitet Praw Społecznych a praktyką implementacyjną w państwach członkowskich, w tym w Polsce. W prawie Rady Europy Europejska karta społeczna (zrewidowana) bezpośrednio ustanawia prawo do równości i ochrony przed dyskryminacją w punkcie 20 i określa odpowiadające temu obowiązki państw stron w zakresie poszanowania, ochrony i realizacji tego prawa w artykule 20. Jednakże poza artykułem 20 zasada równości i niedyskryminacji leży u podstaw każdego prawa gwarantowanego przez kartę, co wyrażono w artykule E. Karta jest jedynym prawnie wiążącym dokumentem obowiązującym w przestrzeni europejskiej, który zawiera postanowienia ustanawiające tak różnorodny i szeroki wachlarz praw pracowniczych i socjalnych, w tym np. prawo do mieszkania. Z uwagi na powyższe rola karty w kształtowaniu najwyższych standardów prawa do równości i niedyskryminacji oraz wzmacnianiu mechanizmów ich ochrony w Europie jest kluczowa. Niestety wnioski Europejskiego Komitetu Praw Społecznych dotyczące prawa do równości i niedyskryminacji odzwierciedlają stosunkowo niski stopień zgodności ze standardami karty. Dlatego też zachęcanie państw do poprawy standardów ochrony tego prawa jest istotnym wyzwaniem dla wszystkich krajów europejskich na najbliższą przyszłość.
Słowa kluczowe: równość, niedyskryminacja, europejska karta społeczna, dyskryminacja bezpośrednia, molestowanie
Abstract
Protection against discrimination in employment
in light of the European Social Charter’s standards
This paper is devoted to the analysis of the right to equality and protection against discrimination in employment in the light of the European Social Charter. The said rights are fundamental human rights of key importance recognized in the constitutions of all but three EU and EEA Member States and in most international human rights instruments. The aim of the article is to comprehensively present the relationship between the standards of the European Social Charter in the light of the interpretation of its provisions made by the European Committee of Social Rights and the implementation practice in the member states, including Poland. In the law of the Council of Europe, the European Social Charter (revised) directly establishes the right to equality and protection against discrimination, especially in point 20, and specifies the corresponding duties of states parties to respect, protect, and fulfil this right in Article 20. However, the principle of equality and non-discrimination lies at the heart of each right guaranteed by the Charter, which is expressed in Article E. The Charter is unique in being the only legally binding European instrument that contains provisions specifically and exclusively addressing many social and employment rights, including e.g. the right to housing. Therefore, its role in establishing high standards of enjoyment of the rights to equality and non-discrimination and strengthening the mechanisms of their protection in Europe is crucial. Unfortunately, conclusions of the European Committee of Social Rights concerning the right to equality and non-discrimination reflect a relatively low degree of compliance with the Charter’s standards. Therefore, incentivizing states to improve their standards of protection of this right is an important challenge for all European countries in the future.
Keywords: equality, non-discrimination, European Social Charter, direct discrimination, harassment
Introduction – the right to equality and protection against discrimination
in the light of international standards
The right to equality and protection against discrimination are fundamental human rights of key importance, which are recognized in the constitutions of all but three EU and EEA Member States[1] and in most international human rights instruments. Equality represents the principle of ensuring equal treatment and access to opportunities for all individuals, regardless of their background. In social contexts, it promotes fairness across race, gender, age, sexual orientation, religion, political opinions and other factors that differentiate people. Politically, it safeguards rights like voting and representation, while economically, it supports equitable access to resources and opportunities. At its core, equality emphasizes fundamental human rights, as endorsed by the Universal Declaration of Human Rights, highlighting every individual’s right to dignity, freedom, and fairness.
Even though the international community has frequently reaffirmed the importance of full respect for the right to equality and non-discrimination, there remains a disturbingly large gap between the standards set in international human rights treaties and the situation prevailing in many parts of the world. While the problems are often particularly acute in certain developing countries, which are confronted with major constraints regarding employment and the social sphere, significant problems of discrimination in the enjoyment of employment and social rights also exist in some of the most economically developed societies.
World Justice Project (WJP) Rule of Law Index — the world’s leading, independent source of rule of law data — finds that 70% of countries have seen discrimination worsen between 2021 and 2022. Since 2015, discrimination has increased in three-fourths of the states that WJP studied[2]. The results of surveys show that no state is free from significant problems related to discrimination of one kind or another[3]. Looking at the problem from a gender and employment perspective, according to Eurostat[4], in 2021, 5.23 million women in the EU reported feeling they were being discriminated against at work[5]. Far fewer men, 3.63 million, reported the same. More women than men also reported having felt discriminated against at work on the grounds of age (0.37 million women versus 0.31 million men) and disability (0.11 million women versus 0.09 million men), whereas more men than women reported having felt discriminated against on the grounds of foreign origin (0.81 million men versus 0.59 million women).
Discrimination exists in practice despite the fact that international human rights law places an obligation on states to ensure equality between people, so that everyone can enjoy the rights necessary to live and work with dignity, including the right to fair remuneration, promotion and termination of employment. States must guarantee equal rights for all, without discrimination based on gender, race, ethnicity, age, disability, sexual orientation or other characteristics.
The right to equality and non-discrimination is enshrined in many international human rights treaties, which address its different dimensions[6]. Historically, key statements on the right to equality and protection against discrimination are contained in two documents authored by the United Nations. The United Nations’ Universal Declaration of Human Rights states, in Article 7, that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” and in Article 23.2 that “Everyone, without any discrimination, has the right to equal pay for equal work.”[7]. The United Nations’ International Covenant on Economic, Social and Cultural Rights (hereinafter: the ICESCR) asserts, in Article 7 par. a). point i). that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular: Remuneration which provides all workers, as a minimum, with: fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work” and in Article 7 par. c). that, “equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence”[8]. Under articles 2(2) and 3 of the ICESCR, States parties are required to eliminate all forms of discrimination and to ensure substantive equality. Both quoted acts recognize equal treatment and equal opportunities as a component of the human right to equality and non-discrimination. The latter is of central importance for the enjoyment of all economic, social, and cultural rights.
As the Committee on Economic, Social and Cultural Rights emphasizes, to ensure equality and non-discrimination in employment and the social sphere in practice, states should conduct regular reviews to ensure that national laws and policies do not discriminate against individuals on any prohibited grounds. They should also adopt specific measures, including legislation, aimed at eliminating discrimination against both public and private entities in relation to rights under the conventions and covenants in land-related contexts. In particular, women, migrants, persons with disabilities, the elderly and other people working in rural areas deserve special attention, either because they have been traditionally discriminated against in terms of access to, use of and control over land or because of their particular relationship to land[9].
The European Social Charter as a document establishing the right to equality and protection against discrimination in employment
The European Social Charter is a Council of Europe treaty that guarantees fundamental social and economic rights related to employment, housing, health, education, social protection and welfare[10]. It was opened for signature on October 18, 1961 and initially became effective on February 26, 1965, after West Germany had become the fifth of the 13 signing nations to ratify it. The Charter was intended to be the counterpart, in the field of economic and social rights, to the 1950 European Convention on Human Rights (hereinafter: the ECHR), the major achievement of the Council of Europe in the field of human rights. When the Convention was drafted and adopted in 1950, social and economic rights were put aside for reasons of priorities and tactics. A follow-up was, however, intended and a drafting process was initiated already the following year[11].
The 1961 European Social Charter (hereinafter: the 1961 Charter; ESC (1961)) recognized a first list of social rights related to work, social protection and vulnerable groups of people, as well as the so-called reporting system as a mandatory monitoring mechanism[12]. Later on, the original Charter of 1961 was expanded on and added to by a series of instruments. The final result of the process was the adoption of the Revised European Social Charter (hereinafter: the Revised Charter; RESC (1996)), opened for signature on 3 May 1996[13]. It entered into force on 1 July 1999. Built on the 1961 Charter, the Revised Charter was basically intended to update and adapt the substantive content of the first Charter and supplement its provisions in the light of social changes and developments since the adoption of the original text.
Today, the Charter treaty system is one of the most widely accepted human rights set of standards within the Council of Europe. The widespread support for social rights is assured by the fact that 42 out of the 46 member States of the Council of Europe are parties to either the 1961 Charter or the Revised Charter, including all 28 EU Member States. Poland is a party to the 1961 Charter; it has signed, but not yet ratified, the Revised Charter[14].
The monitoring procedures of the European Social Charter rely mainly on the European Committee of Social Rights (hereinafter: the ECSR, the Committee), which the Charters refer to as the Committee of Independent Experts[15]. The Committee is composed of 15 independent members. Its role is to rule on the conformity of the situation in States with the Charters. The Committee adopts conclusions within the framework of the reporting procedure and decisions under the collective complaints procedure. Both the conclusions and the decisions are made public and published annually. They are available on the Council of Europe’s website and in the HUDOC-ESC database[16].
Analyzing protection against discrimination, the Revised Charter contains the most extensive and detailed provisions protecting against discrimination in employment of any Council of Europe legal instruments[17]. The scope of protection guaranteed under the 1961 one is narrower; however, in its essentials, it does not differ significantly from the level established in the Revised Charter, primarily due to the broad interpretation of its provisions by the European Committee of Social Rights.
In the preparatory process of the European Social Charter, the right to protection against discrimination had already been included in the drafts of the 1961 version, in various contexts. However, the introduction of the right as a specific and directly regulated one came only in 1996, with the Revised Charter[18].
In the 1961 Charter, the principles of equality and non-discrimination were not fully developed and the equality elements were expressly incorporated only for certain groups and areas. The Charter contained provisions guaranteeing equal pay for men and women for equal work and work of equal value (Article 4§3 ESC (1961)) and provisions protecting groups of employees particularly vulnerable to discriminatory actions – female employees on maternity leave (Article 8§2 ESC (1961)) and workers with disabilities (Article 15§2 ESC (1961)). Non-discrimination principle featured only in the Preamble; in accordance with its third indent, “the enjoyment of social rights shall be secured without discrimination on grounds of race, color, sex, religion, political opinion, national or social origin.” Therefore, under the 1961 Charter, protection against discrimination in employment has been interpreted as part of the right to work established in Article 1§2 ESC (1961)[19].
Further regulations protecting employees against discrimination in employment were introduced into the European Social Charter system by the Additional Protocol of 1988. The Protocol enriched the scope of rights protected by the Charter with new rights, including the right of employees to equal opportunities and equal treatment in matters of employment and occupation without discrimination on grounds of sex (Article 1 of the Additional Protocol). Poland has not ratified the 1988 Additional Protocol.
The broadest scope of protection against discrimination in employment is guaranteed by the Revised Charter. This document, in addition to the rights granted in the previously mentioned documents (the 1961 Charter and the 1988 Additional Protocol), the scope of which it partially replicates (Article 1§2, Article 4§3 and Article 1 of the Additional Protocol – currently Article 20) and partially expands (Article 8§2 and Article 15§2), contains also newly added regulations guaranteeing employees broad protection against discrimination in employment (primarily Article 23, Article 26, Article 27, and Article E of the RESC (1996)). Poland has not ratified the Revised European Social Charter.
In the text of the Revised Charter the right to equality and protection against discrimination is established directly in Part I, points: 2, 4, 8, 19, 20, 26, 27 and the corresponding duties of Member States to respect, protect, and fulfil the right are specified in in Part II, Articles 2, 4, 8, 19, 20, 26 and 27. What is more, the principle of equality and non-discrimination lies at the heart of each right guaranteed by the Charter, which is expressed in Part V, Article E RESC (1996). Pursuant to the latter, “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”
Equality and non-discrimination are complex concepts, with considerable debate on their meanings and justification. The discussion on equality and discrimination is, in general, characterized by considerable conceptual and methodological confusion. This is no different in relation to the discussion of equality and discrimination in the context of European Social Charter. Although there is agreement on the most elementary principles, in practice, a wide range of approaches is often adopted by the European Committee of Social Rights and the European Court of Human Rights. Similarly, despite there being many common definitions of the central concepts of equality and non-discrimination law in the Council of Europe Member States, there is a fair chance that the concepts are understood and applied differently and that confusion also exists here.
In many aspects concerning the right to equality and protection against discrimination, the Charter derives from the case-law of the European Court of Human Rights (hereinafter: ECtHR, the Court). The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, requires that states guarantee equality and protection against discrimination. Pursuant to Article 14 ECHR, “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Although the Convention does not guarantee the right to employment, Article 8 has been interpreted as covering the sphere of employment under certain circumstances. The European Court of Human Rights has ruled on the right to equality and non-discrimination in employment under Article 8 ECHR, though only in a narrow sense, concentrating on the imposition of employment restrictions in the civil service, for example, in Sidabras and Džiautas v. Lithuania[20]. Protection against discrimination in the realm of employment has also been guaranteed by the Court in relation to the freedom to join or not to join a trade union under Article 11 (Danilenkov and Others v. Russia[21]), protection against dismissal because of trade union activities (Hoppen and trade union of AB Amber Grid employees v. Lithuania[22]) and in conjunction with the freedom of religion under Article 9 (Eweida and Others v. the United Kingdom[23]). In a different context, in Acar and Others v. Turkey[24], employment-related claims of workers which had been accrued more than one year prior to the opening of the insolvency proceedings were not granted priority in the ensuing bankruptcy proceedings concerning their employer. Generally, however, in its case law, the Court has largely refrained from setting positive obligations on the states in respect of employment[25]. Therefore, the role of the European Social Charter is crucial in this area and so the paper will concentrate on protection established by the Charter, especially in Article 1§2 ESC (1961)/RESC (1996) and Article E RESC (1996).
Protection against discrimination in employment under Article 1§2
and Article E of the European Social Charter
Consideration of the scope of protection against discrimination in employment within the legal framework of the European Social Charter should begin with the recognition that both the 1961 Charter and its Revised 1996 version contain provisions establishing the general principle of non-discrimination in employment. In both Charters, this is Article 1§2 and in the Revised Charter, it is additionally Article E, which extends protection against discrimination beyond the area of employment to also cover social rights.
In accordance with Article 1§2 of the Revised Charter, which contains content identical to Article 1§2 of the 1961 Charter, “With a view to ensuring the effective exercise of the right to work, the Parties undertake: (…) to protect effectively the right of the worker to earn his living in an occupation freely entered upon.” The analyzed provision does not explicitly establish the right of employees to equal treatment or protection against discrimination. However, as the European Committee of Social Rights points out, in order to fulfil their obligations under Article 1§2 of the Charter, signatory states are obligated to introduce regulations in their legal systems prohibiting any discrimination in employment on the basis of, among others, gender, race, ethnic origin, religion, disability, age, sexual orientation, or political opinion[26]. The catalogue of protected characteristics is open and shall be determined in the light of current challenges. The obligations arising from Article 1§2 include the need to establish legal regulations, firstly, prohibiting discrimination in all aspects of employment, in particular in terms of access to employment, working conditions and pay, access to training, promotions and job changes, and termination of employment, and secondly, prohibiting any harmful or retaliatory actions taken against employees exercising the rights granted to victims of discrimination[27].
The principle of non-discrimination, as interpreted by the Committee under Article 1§2 of the Charter, is expressly included in the text of the Revised Charter – in Article E, in Part V, which binds all signatory states to the Revised Charter. Pursuant to Article E, which has no equivalent in the 1961 Charter, “the enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.” According to the Explanatory Report[28], Article E of the Revised Charter confirms the case law of the Committee in respect of Article 1§2 of the Charter, that the non-discrimination clause in the preamble to the Charter applies to all its provisions. Accordingly, the Revised Charter does not allow discrimination on any of the grounds listed in this Article in respect of any of the rights contained in the instrument.
The formula of Article E of the Revised Charter corresponds to the formula used in Article 14 of the European Convention on Human Rights, mentioned earlier in this paper, as the Charter was meant to be the counterpart to the Convention. Like Article 14 of the Convention, Article E RESC (1996) applies to all rights set out in the Charter. It does not establish an autonomous right that can be a standalone basis for a complaint, but complements and enriches the content of the substantive rights established in Part I of the Charter and further specified in Part II[29]. Furthermore, as in the case of Article 14 of the Convention, Article E of the Charter is characterized by a certain autonomy – a violation of Article E in conjunction with the relevant article from Parts I and II of the Charter may also occur in a situation in which the provision establishing the autonomous right has not been violated[30].
Given the complexity of the right to equality and protection against discrimination under Article 1§2 and Article E of the Charter, the European Committee of Social Rights has been concerned with a wide range of issues concentrating on the scope of prohibited grounds of discrimination, the material scope of protection and the measures required to ensure the effectiveness of the prohibition of discrimination[31].
The catalogue of characteristics on which differential treatment is prohibited as discriminatory under Article E of the Charter is open-ended and very similar to that contained in Article 14 of the Convention. The fundamental difference lies in the mention of health in Article E of the Charter, while Article 14 of the Convention does not specify this characteristic, and in the absence of property in Article E of the Charter, which is specified in Article 14 of the Convention. This difference, however, is offset by the openness of both catalogues. The catalogue of protected characteristics is not closed; the words “such as” and “any other grounds” contained in the provision indicate that the list of grounds on which discrimination is prohibited is not exhaustive. In addition to the characteristics expressly listed in Article E, the European Committee of Social Rights has recognized, as falling within the concept of “any other grounds,” for example: age[32], disability[33], place of residence[34], economic and social status[35]. Essentially, all characteristics recognized as legally protected under Article 1§2 of the Charter are considered to fall within the concept of “any other grounds” under Article E[36]. What shall be noted, however, in terms of nationality, is that Article E must not be interpreted to extend the scope ratione personae of the Revised Charter[37] which is defined in the Appendix and which includes foreigners only in so far as they are nationals of other parties lawfully resident or working regularly within the territory of the Party concerned[38].
Both Article 1§2 and Article E of the Charter prohibit all forms of discrimination[39], including, in particular, direct and indirect discrimination. The understanding of individual forms of discrimination under both Charters is the same as under the European Convention on Human Rights. Direct discrimination is defined as differential treatment of persons in comparable situations, unless it pursues a legitimate aim, is based on objective and legitimate reasons, and is proportionate to the aim pursued[40]. Indirect discrimination occurs when a measure or practice applicable to everyone puts persons distinguished on the basis of a legally protected characteristic at a particular disadvantage[41]. Indirect discrimination may also result from a failure to take appropriate positive action to ensure the practical effectiveness of the rights granted to all persons[42].
Harassment and sexual harassment are treated under the Revised European Social Charter as offences separate from discrimination that should be legally prohibited as part of or independently from discrimination and sanctioned in the same way as acts of discrimination[43]. Article 26§1 of the Revised Charter addresses sexual harassment and imposes on states the obligation to protect against its occurrence in order to ensure the effective exercise of employees’ right to protection of their dignity at work. Sexual harassment is defined as unwanted conduct of a sexual nature or related to an employee’s sex that violates the employee’s dignity, in particular when committed by superiors or co-workers[44]. The obligation of states to protect against moral harassment, which is defined as other forms of preferential or retaliatory actions or other aggressive behavior that may violate the dignity of employees or negatively impact their careers[45] arises from Article 26§2 of the Revised Charter. Pursuant to its provisions, in order to ensure the effective exercise of the right of all workers to protection of their dignity at work, States Parties to the Charter undertake, in consultation with employers’ and workers’ organizations, to promote awareness, information, and prevention of criminal or clearly hostile and offensive acts directed against individual workers in the workplace or in connection with work, and undertake to take all appropriate measures to protect workers from such conduct.
Moving on to the discussion on sanctions, it should be emphasized that both Article 1§2 of the 1961 and Revised Charters and Article E of the Revised Charter oblige States Parties to establish appropriate and effective means of legal protection against discrimination in employment[46]. To fulfil this obligation, States are obliged, at a minimum, to establish mechanisms for the repeal, annulment or amendment of legal provisions, including provisions of collective agreements, company regulations and other workplace regulations, and individual employment contracts that are contrary to the principle of equal treatment[47]. They should also establish independent institutions specializing in anti-discrimination law to promote equal treatment and provide legal assistance to victims of discrimination[48].
The choice of appropriate legal mechanisms of protection against discrimination in employment rests with the signatory states of the Charter; however, the measures used must be effective, proportionate, and dissuasive. The European Committee of Social Rights considers that the necessary measures must include, first and foremost, the right to compensation for the harm suffered and the protection against retaliatory actions that might be taken by the employer[49]. Individuals affected by discriminatory actions must be guaranteed the right to seek compensation for damage suffered through legal proceedings[50]. Trade unions should be entitled to participate in these proceedings, including initiating them on the employees’ behalf[51]. The burden of proof in employment discrimination cases must be shared and partially transferred to the defendant employer[52]. An employee initiating a lawsuit shall be able to limit himself to demonstrating circumstances that make discrimination probable; in such a case, the burden of proof shifts to the defendant employer, who must demonstrate that they have not violated the principle of non-discrimination[53].
Sanctions for violations of the principle of non-discrimination should serve both a compensatory and preventive function. The list of sanctions should provide for the reinstatement or continuation of employment in the event of its discriminatory termination[54]. An employee subjected to discriminatory conduct should also have the right to seek cessation of further violations[55] and compensation or damages. The amount of monetary compensation should, on the one hand, be proportional to the harm suffered, which must be covered in full – both in terms of pecuniary and non-pecuniary damage – and, on the other hand, deter the employer from repeating the violation of the prohibition of discrimination. Establishing a maximum compensation limit for employees affected by discriminatory conduct should be considered unacceptable and contrary to the principle of full compensation[56]. Furthermore, a necessary legal remedy against discrimination is to provide employees exercising their rights arising from a violation of the principle of equal treatment in employment with protection from termination of employment or other types of retaliatory measures[57].
As described above, Article 1§2 and Article E provide for a general non-discrimination clause. In addition to the provisions establishing the principle of non-discrimination in employment applicable to all employees on the basis of different criteria, the European Social Charter also contains regulations aimed at protecting employees against discrimination on grounds of sex (Article 4§3, Article 20) and protecting groups at particular risk of discrimination. Article 20 of the Revised Charter prohibits discrimination between men and women in employment and calls on states to give recognition to this prohibition and take steps to promote the right to equal opportunity and equal treatment. There are also specific provisions addressing the needs of certain groups, including the rights of employed women to protection of maternity (Article 8), the rights of disabled to social integration (Article 15), the rights of children and young persons to social, legal and economic protection (Article 17), the rights of migrant workers and their families to protection and assistance (Article 19) and the rights of the elderly to social protection (Article 23). The interpretation given by the Committee to these provisions is based upon a broad adherence to “substantive equality.”
Conclusions
The right to equality and protection against discrimination in employment is a critical right for a decent life and a safeguard against maltreatment, poverty and social exclusion. It is a complex and resource-intensive right to implement[58], which can hardly be realized without proper legislative regulation and a well-functioning mechanism of its implementation and monitoring.
Europe still faces a huge implementation gap regarding equality and social rights. Large disparities in social rights protection remain among and within European countries. Discrimination against marginalized groups is prevalent in all states[59]. While there is progress in terms of legislation, de facto inequalities regarding specific groups continue to exist. This has been confirmed by the Committee’s conclusions of 2020, where discrimination based on gender, ethnicity, disability and sexual orientation was noted in many countries[60]. Examples of non-conformities included: indirect discrimination not being defined and prohibited by legislation (Armenia); lack of protection against discrimination in employment on grounds of sexual orientation (Armenia, Azerbaijan, Turkey), ethnic origin and political opinion (Turkey). As regards prohibition of discrimination the most problematic matter for States has been the restrictions on access of foreign nationals to employment and the requirement that the only jobs from which foreigners may be banned therefore are those that are inherently connected with the protection of the public interest or national security and involve the exercise of public authority (Albania, Armenia, Bosnia and Herzegovina, Croatia, Latvia, Montenegro, North Macedonia, Turkey, Serbia). In the case of Poland, the Committee was unable to assess the situation and refrained from taking a position on the prohibition of discrimination in employment, pending receipt of the information requested.
The Charter framework recognizes the close and necessary link between social rights protection and equality. The scope of protection against discrimination in employment under the Charter is broad and covers, in particular, the establishment and termination of employment, working conditions, including remuneration, and access to training, promotions, and job transfers. Employees exercising their rights under anti-discrimination law must be guaranteed protection against any retaliatory actions by their employers. The interpretation of the Charter’s provisions by the European Committee of Social Rights has helped to broaden the protection coefficients in Article 1§2 ESC (1961)/RESC (1996) and Article E RESC (1996), thereby expanding the States obligations in combating discrimination and providing an effective legal response to new needs for protection at work, such as the right to privacy. In addition, in identifying the protection needs of the most vulnerable groups, such as persons with disabilities and migrants[61], the prohibition of discrimination, which has been gradually expanded by the ECSR, is a driving force for promoting and enhancing equal treatment among workers. At the same time, by helping to break down the (false) boundaries between civil and social rights for the consolidation of the European constitutional framework, this prohibition offers considerable food for thought on the opportunity to enhance the interpretative interconnection between the ECSR and the European Convention on Human Rights[62].
The conclusions of the Committee show the need for a common European approach to combating discrimination in the workplace with the aim of ensuring that all persons get fair and equal treatment at work. This approach should include both actions aimed at raising the standards of legal regulation and its effective implementation. The Charter should be the reference point for defining minimum requirements.
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[1] The three exceptions are Denmark, Norway and the United Kingdom. See more on protection of equality and non-discrimination under national constitutions in: C. McCrudden, S. Prechal, The Concepts of Equality and Non-Discrimination in Europe: A practical approach, European Commission 2009, p. 1-49; Heymann, J., Sprague, A. and Raub, A., Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide, California: University of California Press 2020, Available at: https://doi.org/10.1525/luminos.81.
[2] World Justice Project (WJP) Rule of Law Index, available at https://worldjusticeproject.org/rule-of-law-index/global [accessed 9.10.2025].
[3] UN CESCR, General comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant), par. 4.
[4] Eurostat, Self-perceived discrimination at work – statistics, available at: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Self-perceived_discrimination_at_work_-_statistics [accessed 9.10.2025].
[5] See: A. Clonch, M.G. Baker, Occupational gender composition as a determinant of perceived discrimination, Occupational and Environmental Medicine 82 (Suppl 2), 2025, A118.3-A119.
[6] United Nations, Universal Declaration of Human Rights, arts. 23 and 24; International Convention on the Elimination of All Forms of Racial Discrimination, art. 5; Convention on the Elimination of All Forms of Discrimination against Women, art. 11; Convention on the Rights of the Child, art. 32; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 25; Convention on the Rights of Persons with Disabilities, art. 27; European Social Charter (Revised), Part I, paras. 2, 3, 4, 7 and 8; and Part II, arts. 2, 3 and 4; Charter of Fundamental Rights of the European Union, arts. 14, 23, 31 and 32.
[7] United Nations, Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948.
[8] See: D. Donnelly, J. Finnerty, C. O’Connell, The Right to Housing in: G. McCann, F. Ó hAdhmaill (eds.), International Human Rights, Social Policy and Global Development. Critical Perspectives, Cambridge University Press 2021.
[9] Committee on Economic, Social and Cultural Rights General comment No. 26 (2022) on land and economic, social and cultural rights, par. 12. Available at: https://docs.un.org/en/E/C.12/GC/26 [accessed 9.10.2025].
[10] European Social Charter (European Treaty Series No. 035).
[11] E. Stein, The European Social Charter – instruments and procedures, Nordisk Tidsskrift For Menneskerettigheter – Vol. 25, Nr 1, pp. 58–64.
[12] For early comments see: D. Harris, ‘The European Social Charter’, International and Comparative Law Quarterly, 1964, vol. 13, pp. 1076-87; N. Valticos, ‘La Charte sociale européenne: sa structure, son contenu, le contrôle de son application’, Droit social, 1963, vol. 26, pp. 466-82; H. Wiebringhaus, ‘La Charte sociale européenne’, Annuaire français de droit international, 1963, vol. 9, pp. 709-21.
[13] European Social Charter (Revised) (European Treaty Series No. 163).
[14] On the status of Poland in the context of the Charter see more: T. Zieliński, Les Incidences de la Ratification de la Charte Sociale Europeenne du Conseil de L’Europe sur le Systeme Juridique Polonais, Droit Polonais Contemporain/Polish Contemporary Law 1999 № 1-4 (121-124).
[15] A denomination given since control cycle XV-1 (March-June 2000).
[16] https://hudoc.esc.coe.int/eng.
[17] See: Bell M., ‘Combating discrimination through collective complaints under the European Social Charter’ in O de Schutter (ed), The European Social Charter: a social constitution for Europe, Bruylant, Brussels 2006, p. 39-48.
[18] See: Smusz-Kulesza M., Ochrona przed dyskryminacją w zatrudnieniu w świetle regulacji prawnych Rady Europy, w: red. Carby-Hall J.R., Góral Z., Tyc A., Różne oblicza dyskryminacji w zatrudnieniu, Wolters Kluwer 2021, p. 69-90.
[19] One of the key principles of the Charter interpretation is that the ESC is a ‘living instrument’ and therefore its standards should be applied to current situations and interpreted in the light of current or emerging human rights issues. This led the Committee to interpret the right of a worker to earn a living in an occupation freely entered upon, guaranteed under Article 1§2 of the Charter, as encompassing the general prohibition of all forms of discrimination in employment. See, e.g., ESCR, Autism-Europe v. France, Collective Complaint No. 13/2002, decision of 4 November 2003; Transgender Europe and ILGA-Europe v. The Czech Republic, Collective Complaint No. 117/2015, decision of 15 May 2018.
[20] Judgment of ECtHR of 27 July 2004, Sidabras and Džiautas v. Lithuania, Application nos. 55480/00 and 59330/00, HUDOC.
[21] Judgment of ECtHR of 30 July 2009, Danilenkov and Others v. Russia, Application no. 67336/01, HUDOC.
[22] Judgment of ECtHR of 17 January 2023, Hoppen and Trade Union of Ab Amber Grid Employees v. Lithuania, Application no. 976/20, HUDOC.
[23] Judgment of ECtHR of 15 January 2013, Eweida and Others v. The United Kingdom, Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10, HUDOC.
[24] Decision of ECtHR of 12 December 2017, Mehmet Emin ACAR and others against Turkey and Şafak DOĞAN against Turkey, Applications nos. 26878/07 and 32446/07, HUDOC.
[25] M. Mikkola, Social Human Rights of Europe, Karelactio 2010, p. 341.
[26] Conclusions of ECSR of 2006, Albania; Conclusions of ECSR of 2012, Iceland, Moldova and Turkey, HUDOC-ESC.
[27] ECSR, Digest of the case-law of the European Committee of Social Rights, Council of Europe, December 2022, p. 46-50, available at: https://rm.coe.int/digest-ecsr-prems-106522-web-en/1680a95dbd [accessed 9.10.2025].
[28] Council of Europe (1996), Explanatory Report to the European Social Charter (Revised). Strasbourg, 3.V.1996, par. 135, available at: https://rm.coe.int/16800ccde4 [accessed 9.10.2025].
[29] Decision of ECSR of 4.11.2003, Association internationale Autisme-Europe (AIAE) v. France, Collective Complaint No. 13/2000, HUDOC-ESC.
[30] ECSR, Digest …, p. 231.
[31] See: Smusz-Kulesza M., Manasyan A., Fedorova A., Training Programme for Judges. European Social Charter and case law of the European Committee of Social Rights, Council of Europe, 2021, p. 14-25.
[32] Decision of ECSR of 2.07.2013, Fellesforbundet for Sjøfolk (FFFS) v. Norway, Collective Complaint No. 74/2011, HUDOC-ESC.
[33] Decision of ECSR of 4.11.2003, Association internationale Autisme-Europe (AIAE) v. France, Collective Complaint No. 13/2000, HUDOC-ESC.
[34] Ibidem.
[35] Decision of ECSR of 10.09.2013, IPFEN v. Italy, Collective Complaint No. 87/2012, HUDOC-ESC.
[36] Decision of ECSR of 2.07.2013, Fellesforbundet for Sjøfolk (FFFS) v. Norway, Collective Complaint No. 74/2011, HUDOC-ESC.
[37] See: C. Panzera, The Personal Scope of The European Social Charter: Questioning Equality, in: J. Luther, L. Mola (eds./dir.), Europe’s Social Rights Under the ‘Turin Process’/Les droits sociaux de l’europe sous le «processus de Turin», Editoriale Scientifica, Napoli, 2016, p. 173-188.
[38] Ibidem, par. 137.
[39] Conclusions of ECSR Nr XVIII-I (2006), Austria, HUDOC-ESC.
[40] Decision of ECSR of 10.10.2000, Syndicat national des professions du tourisme v. France, Collective Complaint No. 6/1999, HUDOC-ESC; ECSR, Conclusions of ECSR Nr XVI-1 (2002), Greece, HUDOC-ESC.
[41] ECSR, Digest …, p. 58.
[42] Decision of ECSR of 4.11.2003, International Association Autism-Europe (IAAE) v. France, Collective Complaint No. 13/2002, HUDOC-ESC; decision of ECSR of 25.06.2010, Centre on Housing Rights and Evictions (COHRE) v. Italy, Collective Complaint No. 58/2009, HUDOC-ESC; decision of ECSR of 21.03.2012, International Federation of Human Rights (FIDH) v. Belgium, Collective Complaint No. 62/2010, HUDOC-ESC; decision of ECSR of 11.09.2012, Médicins du Monde v. France, Collective Complaint No. 67/2011, HUDOC-ESC. Read more at: M. Mikkola, Social Human Rights of Europe, Karelactio 2010, p. 11–14.
[43] Conclusions of ECSR of 2007, Statement of interpretation on Article 26, HUDOC-ESC.
[44] CoE, Explanatory Report to European Social Charter (Revised), https://rm.coe.int/168007cf93 [accessed 9.10.2025].
[45] Conclusions of ECSR of 2003, Bulgaria; Conclusions of ECSR of 2005, Moldova, HUDOC-ESC.
[46] Conclusions of ECSR Nr XVI-1 (2002), Iceland; Conclusions of ECSR of 2002 France; Conclusions of ECSR of 2012, Andorra; decision of ECSR of 13.09.2012, Syndicat de Défense des fonctionnaires v. France, Collective Complaint No. 73/2011, HUDOC-ESC.
[47] Conclusions of ECSR Nr XVI-1 (2002), Iceland, HUDOC-ESC.
[48] ECSR, Digest…, p. 59.
[49] Conclusions of ECSR Nr XVI-1 (2002), Iceland; decision of ECSR of 13.09.2012, Syndicat de Défense des fonctionnaires v. France, Collective Complaint No. 73/2011, HUDOC-ESC.
[50] Conclusions of ECSR Nr XVI-1 (2002), Iceland, HUDOC-ESC.
[51] Ibidem.
[52] Conclusions of ECSR of 2002, France; decision of ECSR of 13.09.2012, Syndicat de Défense des fonctionnaires v. France, Collective Complaint No. 73/2011, HUDOC-ESC; decision of ECSR of 3.06.2008, Mental Disability Advocacy Center (MDAC) v. Bulgary, Collective Complaint No. 41/2007, HUDOC-ESC.
[53] Conclusions of ECSR Nr XIII-5 (1997), Statement of Interpretation on Article 1 of the Additional Protocol, HUDOC-ESC.
[54] ECSR, Digest …., p. 192.
[55] Conclusions of ECSR Nr XVII-2, Finland, Article 1 of the Additional Protocol, HUDOC-ESC.
[56] Conclusions of ECSR of 2012, Andorra, HUDOC-ESC.
[57] Conclusions of ECSR Nr XVI-1 (2002), Iceland; decision of ECSR of 13.09.2012, No. 73/2011, Syndicat de Défense des fonctionnaires v. France, HUDOC-ESC.
[58] K. Lukas, The Revised European Social Charter. An Article-by-Article Commentary, Edward Elgar Publishing, 2022, p. 337.
[59] K. Lukas, Taking Stock of the European Social Charter at 60 The European Social Charter and Equality, Council of Europe, 2021, p. 5. Available at: https://rm.coe.int/the-european-social-charter-and-equality/1680a3d8cc
[60] ECSR, 2020 Conclusions of the European Committee of Social Rights, HUDOC-ESC.
[61] At the international level, this need has long been recognized by the ILO. See more in: L. Vosko, Decent Work: The Shifting Role of the ILO and the Struggle for Global Justice, Global Social Policy, 2, 1, 2002, p. 26.
[62] M. Giovannone, The Right to Work, in: C. Nivard, the Academic Network on the European Social Charter and Social Right (eds.), The European Social Charter: A Commentary, Volume 2, Brill 2023, p. 72.
