PP019
Analítico de Periódico
P90_25
P90_25
SMUSZ-KULESZA, Monika
Premises of direct and indirect discrimination in employment in the system of law of the European Union / Monika Smusz-Kulesza
Revista do CEJ, Coimbra, n.1 (1º Sem. 2017), p.271-280
Estante n.º 19
DIREITO COMUNITÁRIO, DIREITO COMUNITÁRIO DO TRABALHO, DISCRIMINAÇÃO EM MATÉRIA DE TRABALHO, PRINCÍPIO DA NÃO DISCRIMINAÇÃO, IGUALDADE
The premises of direct and indirect discrimination differ from each other and in each case based on anti-discrimination regulations the court should start with determining what form of discrimination might have occurred bearing in mind it is not bound by the form advanced by the party to the proceedings. After establishing it is direct discrimination that might have occurred the court should determine if all positive premises are fulfilled, so if a person has been treated unfavorably, in comparison to another person in relevantly similar situation with the main difference of a protected characteristic between them and if the reason for unfavorable treatment was the protected characteristic. If positive premises have been fulfilled and the defendant does not raise any defense the claim should be successful. Otherwise — depending on the content-of national regulation — if the defendant proves or if the court considers the negative premises occur the claim should he dismissed. The negative premises — if provided by national law - can he genuine occupational requirement, permissibility of differentiation on the basis of religion or belief by employers who are faith-based organizations and permissibility o/age differentiation in certain circumstances. In case of establishing that it is indirect discrimination that may have occurred the court should establish positive premises of this form of discrimination which are apparently neutral rule, criterion or practice, disadvantageous effect, protected characteristic and the causal link between disadvantageous effect and the protected characteristic. If positive premises have been fulfilled the claim should be successful unless negative premises occur. As it comes to indirect discrimination differential effect of treatment may be justified where it pursues a legitimate aim and where the means to pursue that aim are appropriate and necessary.