Exceptions

• Author: Durbáková, Vanda
• Pages: 58-69

58

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

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

occupational requirements.

The Anti-discrimination Act defines genuine and determining occupational requirements in

Section 8(1), stipulating that

‘a treatment that is justified by the nature of occupational activities or by the

circumstances under which such activities are carried out, if the ground constitutes

a genuine and determining occupational requirement, shall not constitute

discrimination, provided that the objective is legitimate and the requirement is

proportionate.’

There is no explicit reference to which particular grounds this exception is applicable to,

although it can be assumed that it will apply to all the grounds mentioned in the Anti -

discrimination Act (see section 2.1 above). Nevertheless, there has not yet been any case

law on this matter and it will be interesting to see whether the courts will impose a strict

interpretation of th e ‘grounds’ conte xt that would follow from th e wording of the act (‘on

the ground of’) or will apply the wording of the provisions of the directives (‘related to any

of the grounds …’).

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

2000/78)

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

religion or belief.

Section 8(2) of the Anti-discrimination Act stipulates that

‘in the case of registered churchesĽ religious societies and other legal entities whose

activities are based on religion or belief, differences of treatment based on religion

or belief shall not constitute discrimination where they are related to employment by

or to carrying out activities for such organisations and where, by reason of the nature

of occupational activities or the context in which they are carried outĽ a person’s

religion or belief constitute a fundamental legitimate258 and justified occupational

requirement.’

The current version of the Anti-discrimination Act does not contain any provision that would

explicitly entitle the above-defined organisations to require the individuals who are

employed by them or carry out activities for them to act in good faith and with loyalty to

the organisation’s ethos.

There is no case law on the issue.

− Conflicts between the rights of organisations with an ethos based on religion or belief

and other rights to non-discrimination

In Slovakia there are no specific provisions that would explicitly deal with conflicts between

rights of organisations with an ethos based on religion or belief and other rights to non-

discrimination in the context of employment (e.g. conflicts in respect of sexual orientation

or another ground in organisations with an ethos based on religion). However, the absence

of any provisions enabling religious organisations to exercise exceptions that would impact

258 A comma is missing between the words ‘fundamental’ and ‘legitimate’ in the act.