Exceptions

• Author: Kádár, András
• Pages: 64-80

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4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Hungary, national legislation provides for an exception for genuine and determining

occupational requirements.

Article 22(1) of the ETA provides an exception for genuine and determining occupational

requirements (GORs). It reads as follows:

The following shall not be regarded as a violation of the requirement of equal

treatment:

a) differentiation regardin g access to emplo yment, if by reas on of the nature of the

particular occupational activities concerned or of the context in which they are carried

out, it is based on a genuine and determining occupational requirement, provided

that its objective is legitimate and it is proportionate to that objective;

b) differentiation that arises directly from a religious or other ideological conviction

or national or ethnic origin fundamentally determining the nature of the organisation,

and it is proportional and justified by the nature of the employment activity or the

conditions of its pursuit.

Even this exempting clause is deemed non-applicable by Paragraph (2) in cases concerning

equal pay for equal work when the grou nd concerned is gender or racial or ethnic origin.

This provision is in itself a source of unjustified differentiation, as there is no reason based

on the directives why broader justifications for unequal pay should be permissible in

respect of religion, disability and sexual orientation. In all probability, it is a result of hasty

legislation aimed at transposing the EU acquis (Directives 2000/43/EC and 2002 /73/EC),

which was done inconsistently without due attention to the fact that Directive 2000/78/EC

also excludes differentiation in pay on these grounds.

Article 22(1)(a) is the equivalent of the genuine and determining occupational requirement

rule, while (b) is the Hungarian version of the religious ethos exception (with an additional

element that allows special institutions o f national and ethnic minorities to empl oy people

coming from that particular national and ethnic group).

Article 22(1)(a) was amended as of 1 January 2018 in a way that creates doubts regarding

its full compliance with the acquis. Previously, the text was formulated in a way that could

be interp reted to extend to all aspects of employment, whereas the new text seems to

suggest that the exempting clause is only applicable at the time of recruitment

(‘differentiation regarding access to empl oyment’). While this formulation seems t o follow

the solution applied in Article 14 of Directive 2006/54/EC of th e European Parliament and

of the Council of 5 July 2006 on the implementation of the principle of equal opportunities

and equal treatment of men and women in matters of employment and occupation (where

a differentiation can be allowed only in relation to access to employment, but not in relation

to any other aspect of employment), the problem in the Hungarian context is that there

are general exempting clauses (see Section 2.2 above), and therefore, a possible

interpretation may be made acco rding to which Article 22(1)(a) is a lex specialis only in

relation to the recruitment process, whereas (in the absence of a lex specialis) the general

exempting clause (Article 7(2) of the ETA) will become applicable with regard to all other

aspects of employment. This would mean a simple reasonability test, providing the

employer with a much more lenient possibility for exemption than the genuine occupational

requirement test set forth by the Directives.

It can of course be argu ed that even if this interpretation is valid, based on the principles

first declared in the Mangold judgment,141 Hungarian courts would be required to put aside

141 Judgment of 22 November 2005, Werner Mangold v. Rüdiger Helm, C-144/04.

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Article 22 of the ETA, and use Article 4 of Directives 2000/43/EC and 2000/78/EC, to

adjudicate any complaint concerning differentiation based on the grounds protected by

these Directives and related to other aspects of employment (e.g. dism issal, promotion).

In the absence of related case law, it is not possible to say what kind of interpretation the

courts would follow. However, it would certainly be more reassuring if the legislator

amended the new provi sion in a way that makes it entirely clear that only a genuine

occupational requirement may serve as an exemption for differentiations based on the

protected grounds regarding any aspect of employment.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Hungary, national law provides for an exception for employers with an ethos based on

religion or belief.

The above-quoted Article 22 of the ETA provides an exception for an ethos based on religion

or belief. Article 22(1)(b) claims that the principle of equal treatment is not violated if the

differentiation arises directly from a religious or other ideological conviction fundamentally

determining the nature of the organisation, and it is proportionate and justified by the

nature of the employment activity or the conditions of its pursuit.

Furthermore, Article 20(3) of the Act on Churches states that ‘denominational legal

personalities or religious associations conduct their public interest activities [educational,

healthcare, charity, social, cultural, sports, youth -related, child protection activities]

directly or through their institutions in accordance with their religious convictions, and

therefore, specific requirements may be determined concerning recruitment and the

establishment, maintenance and termination of the legal relationshi p of employment,

provided that these requirements can be regarded as justified by the nature or substance

of the given religious ethos, they are necessary for preserving and realising the ethos, and

they are proportionate’.

It is doubtful whether these provisions are full y in line with Directive 2000/78, as Article

22 of the ETA does not seem to incorporate the Directive’s notion of 'legitimacy'. Although

it is likely that, in the course of applying the law, courts and authorities would see this as

an implied requirement of any distinction based on religious ethos, there is no case law on

this issue yet.

Furthermore, according to the Directive, a differentiation based on the religious ethos of

an organisation may only be based on the religion of the person subjected to the

differentiation, and not on any other characteristics (e.g. sexual orientation), whereas the

Hungarian provisions do not impose this restriction on the application of these exempting

clauses.

In the case of denominational school s, additional legal provisions cause further problems.

Article 32(1) of the National Public Education Act states that if the edu cational institution

is maintained by a denominatio n, (i) it may in the course of recruiting teachers and other

employees attach weight to considerations related to religion and belief, and define them

as criteria of recruitment; (ii) it may restrict or ba n teachers’ general right to carry out

their educational work in accordance with their beliefs and values (without imposing these

on the child or pupil); and (iii) it may – in its rules of operation and house rules and in line

with the teachings of the maintaining denomination – prescribe regulations concerning

appearance and behaviour, rights and obligations and religious activities. Disciplinary

proceedings may be launched against the child, pupil or teacher for breaching these latter

obligations.