Communicated on 27 February 2020 Published on 16 March 2020

FIRST SECTION

Application no. 7732/19 Josip HERCEZI against Croatia lodged on 30 January 2019

SUBJECT MATTER OF THE CASE

The case concerns the alleged discrimination against the applicant on account of his health status related to the application of domestic labour legislation.

The applicant sustained a work-related injury. The administrative authorities established that he had suffered a total inability to work and granted him a disability pension. Upon the receipt of the administrative authorities ’ final decision the applicant ’ s employment was terminated ex lege . In line with the provisions of his employer ’ s collective agreement, he was awarded severance pay in the amount of approximately EUR 1,100.

The relevant provision of the Labour Act in force at the material time provided that an employee who had sustained a work-related injury, and did not return to work after his or her treatment and recovery, was entitled to a severance pay of at least twice the amount otherwise due to him or her. On the basis of that provision, the applicant instituted civil labour proceedings against his former employer (a private company) seeking payment of a difference in severance pay. The national courts dismissed his claim finding that the domestic provision at issue was applicable only to those employees:

- who had suffered partial loss of their ability to work (professional inability to work) and

- who had been dismissed from work because they could not have been offered a different post suitable to their physical limitations. Also, in the domestic courts ’ view, the aim of the provision in question was to protect employees who, due to their physical impairment, had a limited opportunity of finding a new job compared to healthy employees.

The applicant complains, relying on Article 14 of the Convention and Article 1 of Protocol No. 12, about alleged discrimination against him on account of his disability. Specifically, he alleges that, by excluding him from the application of the disputed provision, the domestic courts had put him at a disadvantage in respect of employees with a lower degree of health impairment.

QUESTIONS TO THE PARTIES

1. Was the application of domestic labour legislation in the applicant ’ s case discriminatory, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 and/or contrary to Article 1 of Protocol No. 12?

2. In particular, given the fact that the applicant ’ s employment was terminated ex lege due to his total inability to work, was he in an analogous or relevantly similar situation compared to persons whose employment was terminated by a dismissal due to their professional inability to work? If so, has the applicant been subjected to a difference in treatment by being denied the right to a double amount of severance pay? If so, did the denial of the right to a double amount of severance pay to persons who had suffered a total inability to work pursue a legitimate aim and did it have an objective and reasonable justification?