European judgment on equal treatment and sexual orientation

On 12 January 2023, the European Court of Justice rendered a judgement concerning equal treatment in employment and occupation, more particularly concerning sexual orientation (C-356/21). The European Court ruled that national legislation may in no way detract from the protection against discrimination on the grounds of sexual orientation as guaranteed by the European Directive (2000/78/EC). According to the judgement of the Court, the refusal to conclude or renew a contract for specific work with a self-employed person should always be protected against discrimination based on sexual orientation and should not be set aside by national laws guaranteeing the freedom of contract.

Request for a preliminary ruling

Before a Polish District Court compensation was claimed by a self-employed person for damage resulting from a company’s refusal to renew a contract for specific work on the ground of his sexual orientation. Since no new contract was concluded with the self-employed person after he and his partner had published a music video aimed at promoting tolerance towards same-sex couples, discrimination was invoked. The Polish Court brought the case before the European Court of Justice by a request for a preliminary ruling. 

Decision of the european court

Firstly, the European Court stated that the conditions for access to any occupational activity, whatever the nature and characteristics of such activity, are covered by the European Directive. The conclusion of a contract for specific work with a self-employed person is therefore protected by the Directive. Furthermore, the Court stated that an involuntary termination of activity of a self-employed person may be assimilated to dismissal of an employee. The Court concluded that the freedom to choose a contracting party, as guaranteed by the Polish anti-discrimination law, would deprive the Directive of its practical effect if it allows a refusal to contract with a person on the ground of that person’s sexual orientation. 

HR practice

This European judgement is a reminder for EU companies to pay attention to equality and inclusion and to avoid any hint of unequal treatment on one of the protected grounds (such as religion or belief, disability, age or sexual orientation). Internal policies in this respect should be drafted in a broad manner and should also include self-employed persons. Considering the European case law, directors of management companies could seek protection against discrimination in the event that their management agreement is terminated.

Amandine Ther
Attorney at Law