LEGAL REDRESSES FOR THE VICTIMS OF EMPLOYMENT discrimination

Unfortunately, with the law on equal opportunities entering into effect, the regulations of the Mt. with respect to redresses have surprisingly not changed. The law still disposes of redresses quite succinctly: „The consequences of violating the requirements of equal treatment have to be redressed sufficiently. But this cannot injure or enroach on some other employees rights.”[1]

The cited legal regulation raises and inportant problem, because the legislator did not create separate institutions for the redress of discrimination. For this purpose the tools of labour law that could be used previously are still available.[2]

Certain labour law specialists have raised the possibility that against the discrimination realised during the establishment of labour relations  the „most plausible and effective redress would be if the court, next to establishing the fact of discrimination, would establish the creation of the labour relation with his verdict and would oblige the employer to pay the wages (arrears or for a certain amount of time, like for 2 years) of the plaintiff.”[3]

What happens though if the employer fills the opening with another applicant in the meantime? According to Nacsa „the redress of violation of rights in connection with discrimination should not be connected to injurying another employee – who benefits from the discrimination but did not cause it. The Greek solution is fair, when the employer (…) becomes richer by 2 employees. Thus the disadvantages of redressing discrimination only afflicts the employer who has committed the discrimination in the first place and not the other employee.”[4]

According to the point of view established against this „it is true that there have been dases in the Hungarian legal system where the contract was established with judicial verdict, we cannot disregard the condition that the employer is free to choose from the job-applicants. (…) According to all these I think that without explicit legal authorization, the court cannot bring a verdict that (…) would oblige the employer to establish labour relations. Short of clear legal regulations the conditions according to which this should be done could not be established. It would probably be more effective if a defined compensational overhead was established, which could, for instance, be aligned with the wages of other employees working in the given scope of activities.”[5]

The law of the European Union is somewhat more careful with respect to redresses than the legal regulations of Greece and other countries. In the field of labour discrimination it only specifies financial compensation but does not limit the amount of it. Part of the reason for this is that a negligible amount of compensation does not have enough restraining power on the employer excercising discrimination.[6]

With the absence of suitable case-law, the Hungarian practice is still taking its first steps. The labour inspectorate has established compensation – as far as we know – in a procedure initiated due to discrimination in one instance: in the case of P. Mariann, which we have already introduced. Because of this it is early to talk about general practice and Hungarian tendencies. However, with respect to this unique case we consider it worthwhile to formulate a couple of questions which we have encountered during the procedure.

After negotiating with the parties, we have requested the court in our statement of claim to oblige the respondent company to pay 600.000 HUF non-pecuniary compensation to each of the three plaintiffs. When establishing the amount of compensation we have taken into consideration the Hungarian practice of non-pecuniary compensation in the event of violation of human dignity and the injury that all three of our clients has experienced. When asked the question of whether they would still work at the respondent sompany after what has happened – a questionthat the court also asked during the trial – all three women answered with a deffinite no. According to their account the humiliation they have experienced during the application for the job and the cinical behaviour of the respondent during the hearings has injured their human dignity to such an extent that they cannot image working in the factory after all this.

The court finally declared a compensation of 150.000 Huf for each of the three Roma women. When calculating the amount the court took amount of the minimum wage for the trial period as a basis. However not a single sentence is said in the reasoning of the verdict about the violation of human dignity and the humiliation of discrimination. As the representative of the plaintiffs, the Bureau appealed against the verdict, attacking the amount of the compensation adjudicated and its legal basis. We pledged that the court has not taken into consideration the consequences of the discrimination injuring the human dignity, as if the hree women only experienced fianancial losses due to the fallout of income. There is no legally binding verdict in the case as yet.

Disregarding the specific case it is our point of view that in all cases where the court establishes the fact of discrimination - in the case of relief sought - the legal claim of non-pecuniary compensation is valid and the only question about it is the total sum of it. We have found examples of it in Hungarian practice, because in the case of people who are imprisoned or detained innocently, there is no need to prove for the legal claim of non-pecuniary compensation that the deprival of their freedom is a disadvantage. In these cases giving proof only has to be carried out in order to establsih the exact amount. It is our observation that following this example – and taking the previously mentioned European Union practice into consideration – in all well-grounded cases of discrimination, this directio should be followed.