In one of its recent judgments (Jurčić v. Croatia) the Court ruled that Croatia had violated Article 14 of the European Convention on Human Rights. The Croatian authorities committed discrimination by challenging the right to receive insurance benefits merely because a female employee entered into an employment contract several days after submitting herself to an in vitro procedure while her physician ordered her to rest during this period. Moreover, the authorities deemed that the employee wanted to deceive the insurance system and that her employment was fictitious even though it was not clear whether at the time of establishing the employment relationship she was pregnant. No checks were even made into whether the employee had started performing her employee duties and whether the employee was actually unfit to work following the in vitro procedure. 

The Court ruled that such an action was gender-based discrimination (only a woman may submit to an in vitro procedure), while the authorities of Croatia failed to prove in line with the principle concerning the burden of proof that their action was warranted or necessary in the circumstances at hand. For this reason the determination was made that the complainant was a victim of discrimination and she won the case. 

This argument is an indication and an additional argument for employers and female employees who would like to persuade the Social Insurance Institution that their employment contract is valid and that an employee has the right to receive benefits. It is worth remembering that this line of reasoning has already been embraced in the case law of the Polish Supreme Court. 

The Supreme Court judgment of 9 February 2012 (I UK 265/11) found that a desire to obtain social insurance benefits in connection with taking employment does not evidence intent of circumventing the law. Its judgment of 11 January 2006 (II UK 51/05) explicitly emphasized that there is no prohibition against hiring pregnant women. Quite to the contrary, refusing to hire women on account of pregnancy is against the law. In its judgment of 22 June 2015 (I UK 367/14) the Supreme Court found that employment is for appearances only if both parties are aware that the employment contract will not be performed, and the employee does not do any work. 

The foregoing reasoning is worth remembering not only during an inspection but above all during court proceedings that continue to appear against unfavorable decisions made by the Social Insurance Institution.

Find more in the PRO HR April 2021.