Sensitive or controversial issues

• Author: Kádár, András
• Pages: 123-124

123

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national leve l

While the Commission closed the infringement procedures launched against Hungary for

the ETA’s non-compliance with Directives 2000/43 and 2000/78 (in 2007 and 2010

respectively), and found that Hungarian legislation was in accordance with the Directives,

it is the view of the author that full compliance is uncertain in some areas and is highly

dependent on the judicial interpretation of the regulations in question. The areas in which

possible breaches may occur are summarised below.

− Due to the comprehensive material scope of the ETA, the requirement of equal

treatment as set forth by the ETA applies only to a restricted circle of private actors.

Therefore, with regard to the sectors falling under the material scope of the

Directives, Hungarian law may be in breach of the a cquis, as it does not impose the

obligation of non-discrimination on all persons in the private sector. (For a detailed

explanation, see Section 3.1.2.)

− Article 7(2) of the ETA allows for objective justification in certain cases of direct

discrimination, depending on the ground for discrimination and on the nature of the

right concerned (fundamental right or not). (For a detailed explanation, see Section

2.2.)

− The rules for the justification of indirect discrimination are also not fully in line with

the Directives. (For a detailed explanation, see Section 2.3.)

− The ‘special exempting clauses’ also contain certain inconsistencies, unjustified

distinctions between certain grounds and wider possibilities for exemption than

allowed by the Directives (see for example Section 4.1 on the equal pay for equal

work principle and Section 4.2 on employers with an ethos based on religion or belief

and the regulation of genuine and determining occupational requirements).

Depending on judicial interpretation, some provisions of the new law on churches and

religion and the new law on public education may cause a contradiction between

domestic and EU law in relation to organisations with a religious ethos. (For a detailed

explanation, see Section 4.2.)

− The Labour Code’s capping of the damages that may be granted if an employee is

dismissed in a discriminatory manner and does not request their reinstatement

seems to contradict the relevant jurisprudence of the CJEU. (For a detailed analysis,

see Section 6.5.)

− The exclusion of workers of pension age from a severance payment may be in

violation of the relevant CJEU jurisprudence. (For a detailed analysis, see Section

4.7.)

− The obligation of reasonable accommodation has not been unambiguously transposed

into Hungarian law. The problem is especially acute with regard to employing people

with disabilities, in spite of an amendment to the RPD Act, which – if interpreted from

a strictly literal point of view – only guarantees the requirement of reasonable

accommodation in relation to the recruitment procedure (i.e. primarily the job

interview), but does not prescribe that reasonable efforts shall be made to adapt the

workplace to the special needs of persons with disabilities to promote their actual

employment. (The situation in this regard is rather complex. For details, see Section

2.6.)

11.2 Other issues of concern

− Public premises and services are still far from being completely accessible, even

though the obligation to provide an accessible environment has been in place for over

a decade.

− The number of cases in which the Equal Treatment A uthority establishes

discrimination and in which a friendly settlement is reached is still very low compared

to the overall number of complaints to the Authority (in 2018, the combined number