In 2004 three young roma entrepreneurs turned to our office. They wanted to make a living by establishing their own cleaning agency. According to their account they answered – first via email, then over the phone – advertisements posted on the Internet. In both cases the company looking for cleaners reacted favourably to their application. They have even agreed that for the personal interview, the entrepreneurs will take their cleaning utensils, so that they could start working at once.
As agreed over the phone, our plaintiffs were supposed to be in front of the BNV at 5 o’clock in the morning in working clothes, with cleaning utensils. They also agreed that they would carry out the work as subcontractors; with 2 cleaners a day for a monthly gross 45 thousand HUF each
Our roma entrepreneurs kept themselves to the agreement and were at the given place by half past four. However, then the employee of the company showed up and saw them, he started talking to them in a different manner than he had done earlier on the phone. According to our plaintiffs he didn’t greet them, didn’t introduce himself and addressed them with undue familiarity despite the fact that he had never met them before. When it became evident for the representative of the company that our plaintiffs were the ones with whom he had agreed upon starting work on that day, he only said “they didn’t employ people like them”. And then refined his message by adding that they do not wish to employ gypsies. He even explained his decision by telling them that the company had previously employed a roma girl but she had to be sent away. Thus they don’t want to employ romas in the future, as they had bad experiences with them.
Because of the humiliating treatment and the discriminative rejection we have started litigation as the representatives of the three roma entrepreneurs. In connection with the case we have to clarify in the beginning that this is not a case of labour relation between employee and employer, but a subcontracting legal relation, as the company would have employed our plaintiffs within the framework of a subcontracting agreement.
According to the legal regulations prior to the Ebktv entering into effect, only the appropriate provisions of the civil code could be applied to this legal relation, namely the regulations pertaining to contracts of manufacture were the norm. With view to stepping up against discrimination this was by all means unfavourably as there are no anti-discrimination passages in the civil code with respect to establishing contractual legal relations. Furthermore, the burden of proof is borne by the initiator of the procedure, namely the plaintiff.
One of the main principles of the Civil code is the freedom of contract. This practically means that everyone has the right to decide whether they
a) enter into a contract or not,
b) and if yes, then with whom.
If the mandatory party does not want to enter into a contract of manufacture with someone because of their roma origin, then the party suffering infringement of its rights could only file a lawsuit because of the infringement of his personal rights.
This problem arose in one of our earlier cases when a roma young man applied for a job handing out flyers. However, following the personal interview, the company advertising the position did not hire him because of his origin. Our Office handed a petition to the competent labour court, which declared that the company did not wish to employ the plaintiff as an employee but was offering him work within the framework of mandatory legal relation. Thus the case was transferred to the competent court dealing with civil suits. This transfer meant that the claim of the plaintiff also had to be changed. When the labour court was handling the case the regulations of the Labour Code prevailed. These regulations expended the prohibition of discrimination to the procedure preceding the establishment of labour relation. In such cases the burden of proof was shared between the job applicant and the employer. As already mentioned in our study the party that suffered the infringement of its rights did not have to prove that the infringement happened, it only had to render probable that he was discriminated due to his origin. This in practice meant that the plaintiff was in a more advantageous position, as he did not have to prove the fact discrimination happening; instead he just had to render the infringement of his rights probable.
As the scope of the Labour Code does not cover the case of the young man applying for the job of handing out flyers, legal procedures had to be started due to the infringement of his personal rights regulated by the Civil Code. Although this was a case of other legal relation pertaining to labour relations, we had to petition for the fact of violation of human dignity to be ascertained. This does not mean that the human dignity of party suffering injury did nor suffer a blow or that it’s not humiliating to come face-to-face with the statement that his roma origin doesn’t make him capable of carrying out a task. The point is that prior to the Law on Equal Opportunities entering in to force – from a financial and procedural point of view – it was better to start a labour procedure than to initiate a procedure to state the violation of personal rights.
One of the characteristics of procedures against discrimination is that the fact of discrimination is harder to prove than other statements. This is increasingly true for procedures against labour discrimination. The applicant doesn’t possess the information that is crucial to successfully proving discrimination. Information such as the person experiencing discrimination doesn’t know who was hired instead of him or what the other applicants are like. This is another reason why it’s important who carries the burden of proof and to what extent. Another unfortunate thing was that the prohibition of discrimination protecting employees did not pertain to legal relations pertaining to work that are similar to the establishment of labour relations.
Since the Equal Treatment Act entered into force in January 2004 the prohibition of discrimination extends to all other legal relations pertaining to work, and as such, to work carried out under a contract of manufacture. This is a significant step forward, as sub – and super ordinate relations as present in all labour relation that pertain to work, and so we can effectively step up against possible discrimination during hiring and the conclusion of the contract even when applying for work not typically carried out within the framework of a labour contract. Naturally not only the established legal relation falls under the scope of the law but also the prohibition of discrimination covers the procedure preceding the establishment of the legal relation.
Returning to this specific case of the roma entrepreneurs we asked the court to stipulate a non-pecuniary compensation of 500 thousand HUF each. In the final chapter of our study we will introduce the sentence in whose justification the court states that the mere fact of discrimination in itself substantiates the grounds of compensation for non-pecuniary damages. However it is worthwhile to study the question of compensation in more detail. Similarly to civil lawsuits, in labour procedures started due to the violation of equal treatment compensation of both pecuniary and non-pecuniary damages can be claimed. In case of financial damages the non-payment of wages could be evaluated. If in this present case we focus on the contract of manufacture, then we can assume that the contract time is determined in months. Based on this a month’s contractor’s fee could be validated in the scope of financial damages. According to our point of view one month’s contractor’s fee cannot be considered an exaggeration as even if the work of the contractor is in appropriate it can still be presumed that the parties fulfil a time of 1 month according to the contract. Within the framework of financial damages it can also be taken into consideration if the parties wanted to conclude a contract for a longer period of time. In this case assigning a longer period of time can deviate from the contractual fee for one month. Of course, the reasons for the termination of contract, the possibilities of rescission from the contract and the dismissal period have to be examined.
With respect to non-pecuniary compensation we agree with the justification of the sentence according to which the fact of discrimination in itself entails the establishment of compensation for non-pecuniary damages. However, we can also state that not hiring someone is also an injury even if it isn’t an offence. If the employer does this unlawfully, with no reason at all accept the origin of the future employee, and then it is not only illegal but also humiliating. Thus in view of the plaintiffs besides the loss of potential earnings – which apply as financial damages – the violation of their dignity is also a significant damage. In our present case the declaration of the respondent company that they do not wish to enter into a contract with romas damaged the reputation and dignity of the plaintiffs.
The situation is slightly different in case of employment under labour contract, because in this case it’s probable that the employer has stipulated a probation period. During this period of maximum three months either of the parties can terminate employment without any reasoning. We consider that claiming a compensation for financial damages equal to a month’s wages is not an exaggeration. [1]
Still as it could also be seen from the above example in cases such as this we prefer to claim non-financial compensation. There is a very simple reason for this. We reckon that proving the plaintiff’s possible future loss of income raises several problems, thus we find it more viable to have the damages caused by discrimination compensated in the form of non-pecuniary damages.
[1] With respect to compensation for pecuniary and non-pecuniary damages we had an interesting experience in one of our cases (see: White Paper, 2003, the case of P. Mariann). As compensation for non-pecuniary damages the court of first instance ruled an amount equal to three months’ minimum wages. The court reasoned that if our roma client would have been employed, then the employer would probably have stipulated a probation period of 3 months, during which he would have had to pay the plaintiff at least minimum wage. Thus the court made the respondent pay compensation for pecuniary damages for the lost earnings under the pretext of compensation for non-pecuniary damages. According to our point of view this sentence, that leaves a lot to be desired, illustrates well that the practice of passing judgement pertaining to compensation in labour trials filed due to discrimination is still unformed.