Background:

The claimant was a self-employed worker who prepared audiovisual material, trailers and features for the respondent which was a public television channel in Poland.  The relationship was based upon a series of contracts for specific work which the claimant took on in the context of his wider independent economic activity.

In December 2017 the claimant published a music video on Youtube with his partner which sought to promote tolerance for the LGBT community. After the video was published the claimant’s contracts were unilaterally cancelled by the respondent and no new work was commissioned with the claimant.  The claimant took a case against the respondent in Poland based upon direct discrimination on the grounds of sexual orientation.

The domestic court referred the case to the European Court of Justice asking whether the situation fell within the Equal Treatment Directive and whether it affected national legislation relating to freedom of choice for contracting parties and how it related to sexual orientation (considering that the claimant was self-employed here).

Outcome:

It was held that Article 3(1)(a) of the Equal Treatment Directive should be construed broadly which states the ‘conditions for access to employment, to self-employment or to occupation’.  The basis was the objective of the Directive in seeking to eliminate all discriminatory obstacles in relation to livelihoods and the capacity to provide to society through work.  It did have to be shown though that the occupational activities were ‘genuine’ and pursued in the context of a legal relationship with a degree of stability.  The ECJ also held that the concepts of dismissal in the directive ought to be examined broadly.  Therefore, when it came to someone who was self-employed they may be obligated to stop working due to the unilateral acts of another and that the failure to renew or unilateral act could then fall within the scope of the Directive.

On the second question it was held that discrimination (if found by the domestic court) could not be justified purely on the basis of protecting the freedom of contract. It was not necessary to justify discrimination to meet the objective of safeguarding the freedom of contract.  Indeed, the Polish legislation and the legislation outlined a number of exceptions to the freedom to choose who you were contracting with and that demonstrated that it was not absolute in that regard.  The ECJ also held that to allow freedom of contract to trump anti-discrimination laws such as the directive would have the effect of taking away the practical effect of the directive.

Practical Guidance for Employers:

This interesting case demonstrates the extent to which the ECJ seeks to have the Equal Treatment Directive interpreted broadly to ensure individuals are protected from discriminatory treatment.  As a result, it applies in situations where an individual is self-employed and the contract is stopped or there is a decision to stop engaging the individual.  More interestingly, and thankfully not something regularly examined within the context of Northern Ireland or the wider UK, is that the ECJ states that the freedom of contract cannot be domestically enshrined to allow for discrimination when it comes to contracting with others.