Equal treatment for men and women

Transcription

1 Legal opinion Equal treatment for men and women by Eva Chinapah within LO-TCO Baltic Labour Law Project Case 131, Lithuania 35 June 2003

2 2 Summary: An applicant R.A. had been holding the position in the JSC Pagiriu siltnamiai since In 18 of June, 2001 under the birth of his daughter he decided to take the paternity leave, while his spouse has continued working in the Pagiriu secondary school. In 8 August, 2001 R.A. submitted a request to receive the 3 year child care leave upon his employer. But employer rejected to the request, arguing that on 15 of June, 2001 the board of the JSC Pagiriu siltnamiai had made decision work reorganization and had decided to abolish the unprofitably operating 4-th brigade in which the applicant was included. On 31 of August, 2001 R.A. received a notice that on 31, December, 2001 he will be dismissed. So in this respect, employer said he cannot give him the 3 year child care leave, but it is possible to receive the fix-term leave up to the date of In this way applicant was pushed to agree upon the proposal to fix-term child care leave. On 14, October, 2002, the Court of First Instance had rejected the application, motivating that Law on Holidays and Law on Equal Opportunities of Men and Women do not regulate the termination of legal relation with the employees, being on the childe care leave. The decision was supported by the discriminatory regulated provision of the Law on the Employment Contract, article 35, that employers shall be prohibited from terminating, at their own will, employment contracts of women who have children under 3 years of age or of fathers and other persons who are the sole supporters of children under 3 years of age. Employers shall also be prohibited from terminating employment contracts of said persons at their own initiative if the employee is not at fault. Court had said that special notice should be devoted to the woman s physiological speciality, the relationship with the child, what is absolutely unacceptable in the democratic society, where a need to equalize the family and occupational duties between men and women is broadly emphasised. Currently, the decision is appealed and stays within the Circuit court. The experts opinion is needed for the litigation process. INTERNATIONAL EXPERT OPINION 1. Background Mr. R.A., hereinafter referred to as Mr. X., decided to take his paternity leave on 18 June 2001 since he recently received a child. His spouse would continue her work at a secondary school. On 8 August he submitted the request for the 3 year child care leave to his employer. The employer rejected the request with the motivation that due to reorganisation measure decided upon by the board on 15 June 2001 the division in which

3 3 the applicant worked would be suspended. On 31 August he received a notice that he will be dismissed on 31 December The employer suggested that he take a fix-term leave up till the date of 31 December instead. The applicant submitted his case to the Court of First Instance. On 14 October he received a rejection to his application. The motivation from the Court was that the Law on Holidays and Law on Equal opportunities for men and women do not regulate the termination of employment relations with employees being on the child care leave. The rejection was also supported by article 35 in the law on employment contract. The decision has been appealed. 2. Questions posed In order to do a proper analysis of the facts in the case presented by Lithuanian trade union Solidarumas, in relation to European and International standards, I have come to the conclusion that following questions should be posed: 1. Is there a violation of the principle of equal treatment and opportunity according to International and European standards? 2. Does there exist a right to parental leave according to international and european standards? 3. Is there any valid ground for the termination of employment contract in this specific case? 4. Is there an infringement of the duty for the employer to inform the employee and trade union about the reorganisation plans? 3. National legislation 3.1 Constitution of Republic of Lithuania Article 29 All people shall be equal before the law, the court, and other State institutions and officers. Article 38 The family shall be the basis of society and the State. Family, motherhood, fatherhood and childhood shall be under the care and protection of the State. Marriage shall be entered into upon the free consent of man and woman. The State shall register marriages, births, and deaths. The State shall also recognise marriages registered in church. In the family, spouses shall have equal rights. The right and duty of parents is to bring up their children to be honest individuals and loyal citizens as well as to support them until they come of age. The duty of children is to respect their parents, to care for them in old age, and to preserve their heritage. Article 39 The State shall take care of families bringing up children at home, and shall render them support in the manner established by law. The law shall provide for paid maternity leave before and after childbirth,

4 4 as well as for favourable working conditions and other privileges. Children who are under age shall be protected by law. 3.2 Law on Employment Contract Article 35. Restrictions for Terminating Employment Contracts of Pregnant Women or Women who Have Children under 3 Years of Age. Employers shall be prohibited from terminating, at their own initiative and own will, employment contracts of pregnant women. Employers shall be prohibited from terminating, at their own will, employment contracts of women who have children under 3 years of age or of fathers and other persons who are the sole supporters of children under 3 years of age. Employers shall also be prohibited from terminating employment contracts of said persons at their own initiative if the employee is not at fault. Guarantees provided by paragraphs 1 and 2 hereof shall not be applied in cases when an employment contract is terminated under subparagraph 1 of Article 29 of this Law. 3.3 Law on Holidays Article 19. Leave to Look After a Child Below the Age of Three. Upon her request, a mother shall be granted child care leave until the child reaches three years of age. Upon the family's decision, leave shall be granted to the father, grandmother, grandfather or other relatives of the child who is actually bringing up the child. Leave may be taken either in full or in parts, and persons entitled to this leave may alternate turns. A child care allowance established by the State shall be paid for the period of leave, and the working place (post) shall be kept for the person, except in the event that the enterprise is completely liquidated. 3.4 Law on Equal Opportunities of Men and Women Article 5. Employer s duty to implement legal equalities of men and women at work. 2. To create conditions for work, opportunity to raise the qualification and to apply equal privileges; Article 6. Employer s activity violating equal rights of men and women. Employer s activity are acknowledged as violating equal rights of men and women if on the basis of person s sex he: 3. Imposes disciplinary punishment, changes the work conditions, transfers to another job or terminates the employment contract. 4. International and European standards 4.1 European Council directive - 76/207 on equal treatment, articles 2 and 5-97/80 on the burden of proof in cases of discrimination, articles 3 and 4

5 5-96/34 on parental leave, clause 2-98/59 on collective redundancy, article 2 The directives can be found on internet search module: Please observe that Lithuania has not yet formally entered into the European Community. 4.2 The Revised European Social Charter - Article 20, The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex. With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields: a. access to employment, protection against dismissal and occupational reintegration; b. vocational guidance, training, retraining and rehabilitation; c. terms of employment and working conditions, including remuneration; d. career development, including promotion. - article 1 of the additional protocol of 1988, right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex. 1. With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields: access to employment, protection against dismissal and occupational resettlement; vocational guidance, training, retraining and rehabilitation; terms of employment and working conditions including remuneration; career development including promotion. 2. Provisions concerning the protection of women, particularly as regards pregnancy, confinement and the post-natal period, shall not be deemed to be discrimination as referred to in paragraph 1 of this article. 3. Paragraph 1 of this article shall not prevent the adoption of specific measures aimed at removing de facto inequalities. 4. Occupational activities which, by reason of their nature or the context in which they are carried out, can be entrusted only to persons of a particular sex may be excluded from the scope of this article or some of its provisions.

6 6 - article 24, The right to protection in cases of termination of employment. With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief. To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body. - article 27, The right of workers with family responsibilities to equal opportunities and equal treatment. With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: 1. to take appropriate measures: a. to enable workers with family responsibilities to enter and remain in employment, as well as to reenter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training; b. to take account of their needs in terms of conditions of employment and social security; c. to develop or promote services, public or private, in particular child daycare services and other childcare arrangements; 2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice; 3. to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment. 4.3 International Labour Organisation ILO-Conventions No. 156, articles 1, 3, 8, 9 ILO Convention No. 158, articles 4, 8, 9, 13 ILO Convention No. 111, articles 1, 2, 3. The above mentioned Conventions can be found on ILOLEX search engine on website Swedish law The employment protection act

7 7 Parental leave act 5 Definitions Discrimination a different and less favourable treatment, prevalence of irrelevant characteristics, such as sex, skin colour or religion, over merit or job requirements and denial or impairment of equal opportunity and treatment. Discrimination in equal treatment and equal opportunity..entails treating people differently and less favourably because of personal characteristics (e.g. race, colour, sex, religious or political belief, social origin etc.), and irrespectively of their merit or the requirements of the job. Direct discrimination...when rules or practices explicitly exclude people or treat people less favourably on the basis of personal characteristics not related to the requirement of the job. An example would be discrimination in wages for equal job. Indirect discrimination - when requirements, conditions or practices, which apply to everybody and are apparently neutral, disproportionally disadvantage a particular group. Consequently, the effects of those conditions and practices are discriminatory as such. Maternity leave - a continious period of leave for a worker who is pregnant, who has recently given birth or a worker who is breastfeeding. This definition is based on EC directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. Parental leave - a person with an employment contract, a man or a women worker with an individual right to leave on the grounds of the birth or adoption of a child to enable them to take care of that child. This definition is based on EC directive 96/34 on the framework agreement on parental leave. Child care leave - the use of the right terminology is essential in order to avoid misunderstandings. In this specific case, the Lithuanian Trade Union Solidarumas has used the term child care leave. However, taking into consideration the term and condition of that leave it is more or less comparable with parental leave. In Sweden the term parental leave is related to the leave a parent can take according to the parental leave Act. We do not use the term child care leave in this regard or on any other specific circumstance. The opinion is based on a discussion and analysis in regard to the longer period of leave that a parent can take in order to take care of his/her child. Mr. X wanted to take the leave for a longer period of time, however, maximum 3 years. The right to take such a leave is prescribed by Lithuanian law under the Law on holidays. The child-care leave described for in this case will be acknowledged as a kind of leave comparable to the parental leave described above under heading 5.

8 8 6 Equal treatment 6.1 EU-legislation Directive 76/207EC has defined the principle of non-discrimination, prohibiting direct as well as indirect discrimination in article 2(1). The principle of equal treatment accounted for under article 2(1) is applied on working conditions including situations of dismissal covered in article 5 (1) of the directive. According to the Court the phrase working condition has to be widely construed so that it could include termination of employment relationship, even as a part of a voluntary redundancy scheme. The fact of imposing an age limit for the compulsory dismissal of workers pursuant to a general policy applied by the employer concerning retirement falls within the term of dismissal according to article 5 (1) in the directive, even if the dismissal involves the grant of a retirement pension. Member states should take the steps necessary to ensure that any laws and regulations that are contrary to the principle of equal treatment embodied in the directive shall be abolished. Those laws contrary to the principle mentioned above that was initially inspired to protect those interests shall according to the directive be subject to revision. 6.2 The revised European Social Charter Article 20 of the revised charter corresponds to provisions in article 1 of the Additional protocol of Paragraph 2, 3 and 4 of article 1 in the additional protocol have been moved to the appendix in the revised charter. The right protected in above mentioned provisions, related to the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, might overlap other provisions in the charter. However, the Committee has stated that article 1 in the additional protocol contains further obligations. Unfortunately, the Committee did not indicate what it meant by further obligations. According to the Committee when ratifying article 1 of the protocol, following obligations are put on the contracting parties: - to promulgate the rights - to take legal measures to ensure the effectiveness of the rights concerned, - to define active policies and to take measures to implement them, and thus the rights concerned, in practice. Article 1 in the protocol covers direct as well as indirect discrimination. Positive actions to promote equal opportunity and treatment are permitted. However, it is not required according to article 1. The Committee has defined the article as being dynamic. This indicates that its

9 9 meaning can change over time. The obligation to ensure equal treatment protected in the article may additionally be met in the judicial process. The contracting party is allowed to exclude certain areas from the application of article 1. Those are social security matters as well as other provisions related to unemployment benefits, old age benefit and survivor benefits. Inherited is the requirement for the state to by law protect workers from retaliatory measures such as dismissals taken as a result from their demand to benefit from the right to equal opportunities and equal treatment. The kind of protection provided could be reinstatement or compensation. However, concerning compensation it should be an exception and be sufficient to deter the employer and compensate the worker. For example, there was considered to be a breach of article 4(3) in the revised charter, covering equal pay for men and women, because the limits applied to compensate dismissals, twenty four weeks wages for employees with more than three years service, were not adequate to meet the requirements. The absence of remedies for workers employed in enterprises with less than five workers was a breach of article 4(3). Article 4(3) shares some common features with article 1 of the protocol. However, the latter article requires more of states, such as the shifting of the burden of proof in sex discrimination cases. 6.3 ILO ILO Convention No. 111 covers the principle of equal opportunity or treatment in employment or occupation. More precisely this means among other things that the principle should be valid on terms and conditions of employment. The freedom from discrimination is one of the four categories of fundamental principles and rights at work embedded in the 1998 ILO Declaration. According to article 2 in the Convention each Member state undertakes to declare and pursue a national policy that will promote in respect to national conditions and practices the principle mentioned above. The aim is to eliminate any discrimination in this regard. Such a promotion could be to repeal any statutory provision and modify any administrative instructions or practices which are inconsistent with this policy. 6.4 Conclusion

10 10 Mr. X was dismissed due to the reorganisation of the undertaking according to the employer. However, the dismissal note was delivered after the request for parental leave was made by Mr. X. Mr. X can be granted child-care leave under the condition that he is actually bringing up the child. For the mother the right is unconditional except for the age limit of the child, 3 years old maximum. For the father the leave is conditional on at least two points, the child has to be below the age of 3 years and the father has to actually bring up the child. What is meant by the phrase bringing up the child? Is it not something that is done by both parents? In directive no. 76/207 it is said that laws that are contrary to the principle of equal treatment and opportunity shall be abolished or revised. The law on holidays in Lithuania should be revised due to the reason that it is discriminatory in relation to sex. The same argumentation is referable to the law on employment contract article 35. The protection provided to the father is conditional, he have to be the sole supporters. The mother on the other hand does not have to be the sole supporter in order to enjoy the protection. It could be concluded that the law as such should be revised due to the reason that it is discriminatory in relation to sex. However, no specific action is recommended in relation to the provisions in the directive since Lithuania is not a member state of the European Union According to article 1 of the additional protocol of 1988 to the European Social Charter it is an inherited requirement on the state to protect workers from dismissals taken as a result from their demand to claim their rights to equal opportunity and treatment, by law. In this case Mr. X informed his employer on 8 August that he wanted to take the child-care leave. His request was formally rejected on 31 August at the same time as he received a notice that he will be dismissed due to reorganisation measures that were decided upon already on 15 of June without providing information to the employees. This is not a case of direct discrimination however; it could be a case of indirect discrimination. The practice of dismissing in cases of collective redundancy is considered to be neutral to sex and could be a reasonable ground for dismissal. On the other hand in individual cases the practice could be misused and have discriminatory effects against males taking parental leave. Ultimately, it is a question of burden proof whether the employer prevented the employee to use his right to parental leave and whether the dismissal violated the principle of equal treatment and opportunity in this specific case. One could argue that the dismissal is connected to the request for child-care leave/parental leave. However, it has to be proven in court. Article 20 is based on article 1 in the additional protocol and requires of states to promulgate, to take legal measures to ensure the effectiveness of the right concerned as well as to

11 11 define active policies and to take measure to implement the right in practice. The shifting of the burden of proof in sex discrimination cases is a part of the requirement mentioned above. Does there exist such a possibility in the Lithuanian law? If not it could hamper and weaken the rights provided for in the European Social Charter and undermine the obligation put on a state that has ratified the European Social Charter. ILO Convention No. 111 ratified by Lithuania demand from the state to promote the repeal or modify any provision or practice that is inconsistent with the principle of equal opportunities and treatment. The ILO convention could be interpreted as more or less a policy document. Therefore I will not further comment on the provisions in the Convention since I did not find any further information that could be the base for any additional remarks to what has been mentioned above. 7 Parental leave 7.1 EU-legislation According to clause 2(1) in 96/34/EC, parental leave should be granted for at least 3 months up to a given age, eight years old. The right is according to the directive non-transferable and it covers both men and women. They are protected from dismissal on grounds of applying or taking parental leave in accordance with national legislation, collective agreements or practice. The Member State and/or management shall take the necessary measures to guarantee this right. The directive leaves a lot of room to the member states to design the right to parental leave that does not go below a three months period Comparative analysis The regulations and practices in regard to parental leave vary in the different EU member states. However, there are certain common features. There are few countries that actually encourage fathers to take parental leave. If they do it is usually through governmental campaigns or by providing more flexible arrangements at the workplace. There is a general awareness that increased flexibility in the legislation will promote to a greater extent fathers to take out their parental leave In general one could say that only a few fathers take parental leave in reality.

12 12 In the majority of countries parental leave is regulated by legislation. Beligium is the only country where parental leave is regulated exclusively by collective agreement. In most of the EU countries there exist protection against dismissal in these cases. Nevertheless, the employers often take advantage of the situation and dismiss workers on parental leave. In Austria there is a dismissal protection prohibiting the employer to dismiss the employee until 4 weeks after the end of the parental leave. The dismissal protection in Belgium starts from the day that the employee states that she/he wishes to take parental leave and ends three months after the end of the parental leave. Germany has similar provision. The employer can not terminate a contract except in cases where there are serious reasons such as when it is recognised by the judge and is not related to the fact that the employer is taking parental leave. Portugal went even further by introducing a special procedure where dismissals declared during the period of parental leave or maternity leave are null and void. There exists a specific law regulating parental leave in Sweden. This law embraces persons that are parents. If the employee asks for parental leave or takes parental leave he can not be dismissed due to that reason. If this happens anyway the dismissal is illegal if the employee wish to receive such a legal declaration. Requirements and practices in regard to parental leave may vary a lot. In most of the cases there is a requirement that the person that wish to take out parental leave have been working for a specific period of time, for example 12 months or/and have an employment contract. In some countries certain category of workers or family structures are excluded from parental leave as well as the age or date of birth of the child might be decisive. In Sweden, Spain and Germany the right to take parental leave is not individual, meaning that it can be transferred from one parent to the other. The other countries do not have such a possibility. In Austria for example the fathers can not transfer the right to take parental leave. Before it was solely the mother that had such an individual right. The amount and pay of allowance, total period of leave and the time within which an advance notice of parental leave has to be made vary as well between the countries. In Sweden and Austria the employment contract continues to be valid during parental leave. In the other countries it is suspended. During the period when a person has parental leave, the Austrian employer must notify the parent of any information concerning the

13 13 enterprise which could affect his/her rights, such as information about restructuring measures. In Sweden there is no protection against dismissal during the parental leave as in Portugal or Belgium. However, there are vivid discussions that the protection should be imposed by law, extending the employment protection to those situations as well. The Swedish ombudsman for equality has accounted for what is meant by the obligation for the employer to facilitate for employee to be working and having family responsibilities at the same time according to the Swedish equality act. What is meant is that the employer shall define what kind of needs the employees have in this regard and also take action to facilitate when it comes to working hours, the schedule for meetings etc. The employer should also establish routines so that the employee on parental leave gets information from the working place and can take part in the development of competence. The employer should encourage male workers to take their parental leave. The employer should co-operate with the trade union in his/her promotion for a more equal workplace. 7.2 Revised European Social Charter The right to parental leave is regulated in article 27(2) of the charter. It is vaguely formulated and does not indicate the length, nature or conditions of parental leave. It should be determined by national legislation, collective agreements or practice. The provision has been inspired by ILO Convention No. 156 and ILO Recommendation No According to the appendix to the article it is for the national legislator to define what is meant by a dependent child. In article 27(3) there is a prohibition to terminate an employment contract by reason of family responsibilities. This is already covered by the provision in article 24. The text in article 24 is based on the provisions in ILO Convention No. 158 on the termination of employment contract. The appendix to article 24 in the revised charter, it is stated in paragraph 3e) that maternity or parental leave is not reasonable ground for dismissal. The ILO Convention instead uses the phrasing absence of maternity leave or..family responsibilities.. in article 5, as an unreasonable ground for dismissals. The ILO provision is more comprehensive, covering severance pay, requirements as to notice periods, the burden of proof and the consultation of workers representatives. 7.3 ILO

14 14 ILO Convention No. 156 is applicable on men and women workers with responsibilities in relation to their dependent child, where such responsibilities restrict their possibilities to prepare, enter, participate in or advance in economic activity. The meaning of dependent child is a person who clearly needs care or support defined as such according to national regulations and practices. According to article 3 each member state shall incorporate in national policy to enable workers with family responsibilities to engage in employment without being subject to discrimination. The aim is to avoid putting parents in a situation where there is a conflict between their employment and family responsibilities. Both Convention no. 156 and 158 regulate that family responsibility is not a reasonable ground to end the employment relationship, using different terminology. Lithuania has not ratified these two conventions. However, I will briefly account for its meaning and possible effects. According to an ILO survey very few countries have actually by law made family responsibilities a ground on which discrimination in regard to all aspects of employment relationship is proscribed. In Grece comprehensive legislation in this field was enacted. There was a provision that had the intention of facilitating the preparation for economic activities of workers with family responsibilities. This included helping workers find and keep a job as well as to develop their career prospects. Direct and indirect discrimination was prohibited in this regard. A similar regulation exist in Israel. In the Netherlands an employee can not be dismissed on the ground that they have taken parental leave. This is not explicitly mentioned in the law. However, a provision on the prohibition of sex discrimination in connection with the termination of employment relationship is included under the equality legislation. In this legislation discrimination is defined as including indirect discrimination based on family circumstances or marital status. In Poland the labour code provides that the employer can not terminate an employees employment contract under the period when the worker is on leave or is absent from work for any valid reasons. In cases of collective redundancies certain countries have specific provision in regard to workers with family responsibilities. In Finland there is a practice to include articles in collective agreements that stipulate that the fact that employees have family responsibility must be taken into account when determining the order in which the labour force may be reduced. The federal constitutional court in Germany established that exceptions had to be made in regard to staff reductions in relation to pregnant women and single parents so that dismissals in those cases were inoperative since there were not any socially accepted supporting measures for these persons by law.

15 Conclusion The Lithuanian provision extends the right to parental leave to the child age of 3 years old. The directive leaves a lot of room for the member state to design the right as long as it does not go below a three month period, which is not the case in Lithuania where you can take leave for a maximum period of three years. It could be interpreted that the law on employment contract, article 35 paragraph 3 does not meet the requirements in the directive since it does not mention parental leave as an unreasonable ground for terminating the employment contract. In this regard it is important to define parental leave which is not done in the Lithuanian law. The protection provided against dismissals is exclusively dependent on whether the father is the sole supporter or not One could conclude that the right to parental leave in Lithuania is individual for the mother but not for the father and other persons. In Belgium parents are protected from dismissal form the day that the employee states that he wants to take leave. If this rule was applicable in Lithuania, Mr. X would have a case in court claiming that he de facto was dismissed after declaring that he wanted to take his parental leave to the employer. Then he would have to proof before the court that he actually announced the request for parental leave prior to being dismissed. According to ILO Conventions no. 156 and 158 family responsibility as such is not a valid ground to terminate and employment relationship. According to the Revised European social charter article 24 it is stated that parental leave as such is not a reasonable ground for dismissal. The charter is more specific in its protection for male parents not using the more vague expressions family responsibility. The Lithuanian Law on Equal opportunities of men and women, article 6 could be interpreted as meaning that discrimination on the basis of sex is prohibited in regard to the termination of employment contract. However, there is nothing in that law indicating that indirect discrimination based on family circumstances is included as is the case in for example the Netherlands. Certain countries, such as Finland and Germany, have specific provisions or a practice covering situations of collective redundancies protecting workers with family responsibilities. Such provisions have not been presented in the case sheet submitted by Solidarumas. Perhaps there exists such legislation or provisions in collective agreements. However, I have not received that information. Such a provision in law or collective agreement could be used in favour of Mr. X case when arguing his case

16 16 before the court as a breach of law or breach of collective agreement when not taking into account his family situation in cases of collective redundancy. The provisions in Convention no. 158 together promote a legal system where the employee shall not be trapped in a situation where family responsibilities and the employment is in conflict as a result of a discriminatory act. Each member state shall incorporate a national policy preventing such situations. Lithuania has unfortunately not ratified ILO Convention no. 156 and 158. Consequently, such an obligation can not be imposed on the Lithuanian government. 8 The burden of proof 8.1 EU-legislation Article 3 and 4 in 97/80/EC burden of proof is applicable on provisions in directives 96/34/EC on parental leave and 76/207/EC on equal treatment mentioned above. Directive 97/80 shifts the burden of proof in cases when an employee considers that the principle of equal treatment has not been applied to him/her. The rule of burden of proof in the directive establish the following procedure: if the employee presents facts from which it could be presumed that he/she have been subject to direct or indirect discrimination before a court or other authority it is for the respondent to prove that there has been no breach of the principle of equal treatment. The Courts case law prior to the implementation of the directive indicated the understanding that in certain situations employees would be deprived of any effective means of enforcing the principle of equality in payment before national court if the effect of producing such evidence was not to impose upon the employers the burden of proving that their practices in pay were not discriminatory. The information proving such a practice could be difficult to get hold of. In another case the employer was brought to the Courts attention, obliged to show that there were objective reasons for the difference in pay. The national courts had to assess whether the information provided could be taken into account and whether - they covered enough individuals - they illustrated purely fortuitous or short-term phenomena - they appeared to be significant. 8.2 The revised European Social Charter There is a similar requirement in article 1 of the 1988 protocol for the contracting states to provide by law for a reversal of the burden of proof in cases of alleged sexual discrimination at work.

17 ILO In article 9 of ILO Convention No. 158 there is a specific provision on the burden of proof in cases of dismissals. The member states shall either or both provide for that the burden of proving the existence of a valid reason for the termination as defined in article 4 shall rest on the employer or/and the bodies referred to in article 8 shall be empowered to reach a conclusion on the reason for terminating the employment. 8.4 Sweden According to Swedish law there has to be reasonable grounds for any kind of dismissals. If there is a dispute in regard to the actual circumstances in the case where the employer claims one thing and the employer another, the Swedish labour court has considered that failure in presenting proof should be laid on the employer. It is for the employer to prove that he has reasonable ground for dismissing his employee. There are specific rules for the burden of proof in discrimination cases. The employer is considered to have discriminatory intentions about a certain external situation if it is by its nature dealing with some kind of disadvantage and the employer can not show any objectively acceptable reasons for his/hers action. Consequently, if the court concludes that the dismissal was not founded on reasonable grounds, moreover it could be shown that it is also a dismissal that is discriminatory. 8.5 Conclusion Mr. X submitted his request for child care leave prior to being dismissed. He received the notice ending the employment relationship due to reorganisation 23 days after submitting his request for leave. According to the employer the board of the enterprise decided approximately two and a half month prior to the notice of dismissal that the division in which Mr. X had been working would be laid down due to reorganisation measures. According to the EU directive 97/80 on the burden of proof, Mr. X could present the facts mentioned above before a court. It could be presumed that he has been subject to indirect discrimination and it would be for the respondent, the employer, to prove that Mr. X taking parental leave was not the reason behind the dismissal. According to directive 76/20 article 2 the principle of equal treatment applies to situations of redundancy as well. It is for the employer to prove that there has been no violation of the principle on equal treatment according to directive 97/80. However, the directive is not applicable on the situation in this case since Lithuania is not an EU member state. There exists a similar provision on the shifting of burden of proof in the European Social charter embodies in article 1 of the 1998 additional protocol. The state that has ratified the instrument should by law provide

18 18 for such a provision in cases of alleged sex discrimination at work. According to the information provided such a rule has not been presented as existing in the Lithuania legislation. It could be conclude that due to this fact employees are deprived of an effective mean to enforce the principle of equality in working life as well as to promote the revealing of discrimination cases in working life in Lithuania. 9 Collective redundancies 9.1 EU-legislation Directive 98/59//EC, defines collective redundancies as dismissals effected by an employer for one or more reasons not related to the individual workers concerned. The procedure established for in regard to consultations in the directive is relevant when the employer is contemplating redundancies or has drawn up a plan for it. There is no obligation according to the directive to foresee collective redundancies. This is valid in cases where the number of redundancies is: a) either over a period of thirty days: - at least ten redundancies in establishments normally employing more than twenty and fewer than 100 workers; - at least 10 per cent of the number of workers in establishments normally employing at least 100 but fewer than 300 workers; - at least thirty in establishments normally employing 300 workers or more: b) or, over a period of ninety days, at least twenty, irrespective of the number of workers normally employed in the establishments in questions. Also when calculating the number of redundancies termination of employment contracts of an individual worker, if five redundancies occur shall be treated as redundancies. The definition of redundancy contains both an objective (number or percentage over a given period) and subjective element (the reason for redundancy). According to the provision in article 2 in the directive, the employer shall begin consultation with the worker representative in good time with a view of reaching an agreement. No specific time limits are given in the directive provisions, however it should begin at an early stage in the decision making process. The consultation should cover in minimum ways and means of avoiding collective redundancies and ways of meeting the consequences of redundancy by recourse to measures aiding for redeployment or retraining of workers made redundant. In order for the worker representative to effectively represent the workers the employer is obliged to supply the representative in good time with all relevant information in writing according to article 2 (3)(b).

19 19 According to the European court member states shall ensure that infringements of the provisions in the directive were to be penalised both procedurally and substantially. In a case examined by the European Court of Justice, the law allowed a protective award payable by the employer who failed to consult the worker representative. According to the Court his did not have enough practical effect and deterrent value. In other member states collective redundancies performed in contradiction with the directive are null and void. 9.2 ILO Lithuania has not ratified the ILO Termination of Employment Convention No Even though it is of interest to account for the basic principles and standards provided for by the convention especially in regard to dismissals for economic, technical, structural or similar reasons. It is written in article 4 that an employment relationship can not be terminated unless there is a valid reason for it connected or based with among other things the operational requirements of the undertaking, establishment or service. Dismissals due to the reasons stated above require special rules to protect workers affected by them. Consultation and information procedures connected with collective redundancies have the aim of easing the tension in regard to these situations. Another measure is the requirement of reasonable notice, which in these situations should be extended. In situations when the employer has to dismiss several of his/hers employees, objective criteria must be established to select those that will be dismissed. Mandatory criteria could be established by laws or collective bargaining agreements or/and work rules. Such criteria could be the length of service, the skill of the workers, factors that may increase the difficulty faced by a worker to re-enter the labour market, diligence and aptitude. In some countries such as France a priority system for reinstatement is established, where priority is give to workers with comparable skills. In Germany the agreement for mechanical and metalworks industry in North Wurtemberg and North Baden, prohibits dismissals of workers aged over 53 years and with more than three years service with the plant. In regard to collective redundancies the employer is expected to consult with the workers representative on the measures that he/she has the intention to adopt. Article 13 in the Convention regulates this issue. This obligation is usually prescribed for by law but could also be regulated in a collective agreement or framework agreement. In some countries the employers must inform the workers representative about structural changes or changes in work methods or other action which may within a

20 20 short or medium term period lead to reduction of the workforce. This obligation could in some cases be limited to enterprises with a specific number of workers as for example in Germany. In the Czech Republic, Guniea and Mali the requirement to provide information to workers representatives also applies to individual dismissals for economic reasons whereas in the United States this is compulsory only in cases of mass dismissals. 9.3 Conclusion Did the trade union represented at the working place where Mr. X works receive any information in regard to the reorganisation and the dismissal of workers due to the closing down of a division? This is an important question to answer since there are rather detailed provision both within the EU, directive 98/59 as well as ILO Convention no In cases of dismissal, valid reason could be for example operational requirements of the establishment. In these cases there is a need for special rules to protect workers affected by those kind of dismissals as for example Mr. X. Consultation and information with the workers representative could have a positive impact on the situation of the worker. Furthermore, objective criteria would have to decide who should be selected for dismissal and who not according to ILO standards in regard to the convention on termination of employment contract. The purpose behind consulting the worker representative is to at an early stage involve for example the trade union to introduce discussion on minimum ways and means to avoid redundancies and ways of meeting the consequences through redeployment or retraining. There is no specific minimum time period recommended. It is important that the employer provide the trade union or other worker representative with relevant information in good time. This has not been done in the case of Mr. X according to the information provided. 10 Final conclusions and recommendations I would like to refer to the questions posed under heading 2 and make some final conclusions. Concerning question 1 I would like to refer the following. The relevant provisions in the law on holiday and the law on employment contract in Lithuania are conditional for male parents and could be interpreted as discriminatory on the basis of sex in relation to the rights protected by the provisions. The law as such is according to what is mentioned above contradicting the principle of equal treatment and opportunity on terms

21 21 and conditions of work as it is formulated in European Union directives. Accordingly, judgements delivered by the Lithuanian courts applying those laws, could have negative effects on workers right to equal treatment and opportunity. In regard to question 2, the Lithuania law as such provides for some kind of parental leave referred to as leave to look after the child below the age of three years old. It is regulated in the law on holidays. The family can decide that such a leave shall be granted to the father if he is actually bringing up the child. I could be recommendable to have one law covering parental leave in general defining the concept as well as rights connected to parental leave such as protection from dismissal. The way in which the question is regulated varies a lot from country to country. The European Union provides the member states with a large degree of flexibility on how to regulate the issue technically as long as it does not go below minimum standards. Concerning question 3 Lithuania is obliged to the by law protect workers from dismissals taken as a result from their demand to claim the right to parental leave, as was done by Mr. X, according to the European Social Charter. He should have the equal opportunity and treatment as women in taking parental leave. According to article 20 in the Charter it is required that there should be a shifting of the burden of proof in this kind of cases. It should be the employer that has to prove that he did not discriminate Mr. X. in his collective redundancy scheme leading to Mr. X s dismissal. I have not received any information that there exists such a possibility in the Lithuanian law. Consequently, without such a possibility it could hamper and weaken the implementation of the right protected in the charter and undermine the obligation put on the Lithuanian state. The Lithuanian court rejected the complaint made by Mr. X on the grounds that the law on Holidays and the law on Equal opportunity for men and women do not regulate termination of employment contract with employees being on child-care leave. The decision was supported by article 35 in the law on employment contract. In the Lithuanian law on equal opportunities there is no indication that indirect discrimination could be based on family responsibility. It would be preferable for Mr. X.to at least have the possibility to claim that he was dismissed on unreasonable grounds, being a parent on leave according to the law on holidays or law on employment contract. It seems like Mr. X does not have such a possibility. In certain European countries there exist provisions that protect people in the situation of Mr. X from becoming dismissed at all due to family responsibilities from the day they claim parental leave. Mr. X does not have such protection according to the Lithuanian law.