Published on 28 November 2022

FIRST SECTION

Application no. 29265/22 D.J. against Slovenia lodged on 8 June 2022 communicated on 8 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the civil proceedings instituted by the applicant against her former employer due to the allegedly unlawful termination of her employment contract during her pregnancy.

In February 2014 the applicant, who had held a position of a procurator, was discharged from this position and consequently also lost her employment contract. Once informed of this, she notified the employer that she was pregnant and opposed the employer’s decision referring to a labour-law protection of pregnant women. She subsequently miscarried. In her legal action against her former employer, she demanded reintegration and remuneration of salary for the period of unlawful dismissal. The first-instance court partly upheld her action. The second-instance court dismissed the parties’ appeals.

The Supreme Court upheld the employer’s appeal on points of law and dismissed the applicant’s action. It found that the labour-law protection of pregnant women did not apply to her because she had concluded an individual employment contract (director’s and procurator’s service contract) with an explicit termination clause linked to a termination of her procuration mandate. In the Supreme Court’s view, the applicant had waived the labour ‑ law protection of pregnant women in case of a termination of her employment. The Constitutional Court decided not to accept the applicant’s constitutional complaint for consideration.

The applicant, citing Article 14 of the Convention, complains that the Supreme Court treated her less favourably than other pregnant women because she had concluded an individual employment contract. Consequently, she was deprived of the protection of pregnant women as guaranteed by the relevant provisions of domestic labour-law and relevant European instruments.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant’s right to respect for her private and family life, as guaranteed by Article 8 of the Convention, having regard to the need for the protection of pregnancy and motherhood (see Napotnik v. Romania , no. 33139/13, § 74, 20 October 2020)? Has a fair balance been struck between the applicant’s interest and the interest of the employer and/or the general public interest?

2. Has the applicant suffered discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 8, concerning the termination of her employment contract? In particular, has the applicant been subjected to a difference in treatment by the Supreme Court’s refusal to apply the labour-law protection of pregnant women? If so, was the different treatment based on an identifiable, objective or personal characteristic, or “status”, by which persons or groups of persons are distinguishable from one another (see Clift v. the United Kingdom , no. 7205/07, § 55, 13 July 2010)? Furthermore, did that difference in treatment pursue a legitimate aim and have a reasonable justification (see Napotnik v. Romania , cited above, §§ 71, 74 and 75, and Jurčić v. Croatia , no. 54711/15, § 69, 4 February 2021)?

3. Does domestic law provide for an option for the contracting parties to exclude the labour-law protection of pregnant women and if so, in which circumstances? In this connection the Government are requested to submit relevant domestic law material.