Indirect discrimination in employment

Pursuant to a government decision[1] in 2004 significant cutback were made in the MÁV Co. The employees of the linesman department of a small town in Borsod County were employed by the company’s legal successor as a result. The parties to the contract were chosen by public procurement procedure in accordance with the rules of labour succession. The reorganisation concerned 36,7%, altogether 11 people of the maintenance crew of the linesman department.

Out of the 19 people left on the payroll 5 people have received primary education. Four of them have been employed for more that four decades, and one linesman has been employed since March 2002. Out of the 11 employees transferred 5 linesmen have received primary education, four of them have been employed for a decade and one of them has been employed since 1998.

The majority of the 13 skilled workers still employed are qualified fitters or heating- and plumbing mechanics. Two further employees have been kept on whose qualification are bovine breeder and cabinet-maker and they have employed since May 2002 and November 2002. Out of the 5 transferred skilled workers 3 are trained engine fitters and maintainers, the original profession of one of them is car mechanic and one linesman is a heating and plumbing mechanic. All of them have been working there for several years.

One of our clients is an engine fitter and maintenance worker, and has been working for MÁV Co. since 2000. Our other client has primary education and has been employed since 1994. Finally, our third plaintiff has also completed 8 years of primary education and has been employed since 1994. Out of the 11 employees who have been transferred to the legal successor 9 are of roma origin, while the headman and his brother are not.

It is our position that indirect discrimination has taken place; as 9 transferred employees are of roma origin, and as such pursuant to the law they belong go the so-called protected group.

The Law on Labour states that the requirement of equal treatment should be upheld in relation to the labour relation, and that violation of the requirements of equal treatment should be appropriately redressed.[2]

As already mentioned, the Equal Treatment Act specifies behaviours that violate the requirements of equal treatment. These are behaviours of direct and indirect discrimination[3]. A disposition qualifies as direct discrimination if as a result of it a person or a group, due to his/her real or alleged situation, characteristics or features (i.e. belonging to a national or ethnic minority) receives diverse treatment that is worse than that of a person or a group with the same situation. [4] A disposition qualifies as indirect discrimination if it seemingly adheres to the requirements of equal treatment but puts people or groups with specific characteristics in a position that is significantly worse that that of people or groups with the same characteristics. [5]

In this case the disposition of MÁV Co. was seemingly neutral, as the reorganisation of the employees was made pursuant to a government resolution. At the same time it can be established that a protected group, the romas experienced greater disadvantage as 100% of them were transferred, while 2 non-romas were transferred to the successor employer, and 19 remained employed by the MÁV Co.

A measure does not violate the requirement of equal treatment if it is based on objective deliberation and its motive is rational and is directly related to the legal relation. Upon examining the statistics we can ascertain that workers whose labour relation was a lot longer that that of those who remained in the employment of the MÁV Co. have also been transferred. Out of the skilled linesmen the transferred ones were the ones with technical qualifications (machinist, machine maintainer), while those who stayed had completely different qualifications (bovine breeder). Consequently, there was no general concept in the transfer. Had there been a concept, they would have kept the people who have worked for longer for the MÁV Co, or those with technical qualifications. In that case we could talk about objective deliberation, as the decision was made based on objective reasons.

We have already discussed the part of the Law on Equal Opportunities that deals with the burden of proof. Here we also had to prove that our clients belong to the given minority group and that the arrangements of the employer have put them at a disadvantage. With respect to belonging to the minority group, the court has to accept the declaration of the parties that they claim themselves to be romas. What about the disadvantage? Our plaintiffs have not lost their jobs, they will continue working, so where have is the injury they have suffered? We position that due to the measures taken by the employer, the future safety, and living of the transferred roma employees has been endangered. Pursuant to the collective agreement of the MÁV Co. in case of cutbacks employees are entitles to extra severance pay and longer term of notice. Apart from this, in case of reorganisation or cutbacks at the MÁV there is a so-called “social package”, that means that the employee receives 3 months’ wages as benefit. Our clients will also loose this if they are sent away from their new place of work at a possible cutback. It is also important to know that the legal successor has only undertaken to assure the employees the same allowances as the MÁV for one year. After a year there is no guarantee that the employees will be entitled to the raise in wages or the so-called extra salary allowances. Furthermore the legal successor operates throughout Northern Hungary thus the employees might be forced to work far away from their homes. It is probable that later they will also lose the MÁV free pass, as by then the MÁV will not be an owner of the company any longer and thus this discount will be revoked. [6] This has already happened at another company.

First one of the MÁV’s trade unions stepped up in the interest of the roma plaintiffs and legal proceedings were also initiated by the lawyer of the trade union. The lawyer turned to the labour court asking it to state that the MÁV has violated the requirement of equal treatment with its measures called forth on 1^st December 2004, when it committed indirect discrimination during the reorganisation. The lawyer also requested the payment of 500 thousand HUF of non-pecuniary compensation.

Here we would like to note that the opinion of legal professionals familiar with the case differs with respect to whether the regional directorate of the MÁV committed direct or indirect discrimination during the transfer. To review the pro and contra arguments delivered would exceed our undertaking with the present study but one thing is for sure, the court will have the final word in the dispute.