The European Court of Human Rights has found that the Croatian government discriminated against a woman, Ms. Jurčić, who entered into new employment days after undergoing in vitro fertilisation.
The Croatian authorities claimed that Ms. Jurčić entered into ‘fictitious’ employment with a company which was located some 360 kilometres from her home after undergoing IVF in order to obtain advantages related to the status of working persons during pregnancy.
Ms. Jurčić underwent IVF in November 2009 and entered into employment with a company 10 days later. On 11 December 2009, she applied to be registered with the compulsory health insurance scheme of the Croatian Health Insurance Fund. On 14 December 2009, she was informed that the IVF was successful and a period of sick leave was prescribed. Then, on 28 December 2009, Ms. Jurčić requested payment of salary during her sick leave.
Thereafter, the Fund began to investigate Ms. Jurčić’s health insurance status and rejected her application for registration as an insured employee, as well as her request for salary compensation. The Fund contended that Ms. Jurčić became medically unfit for employment when she began IVF treatment and thus her employment was fictitious and aimed solely at obtaining pecuniary advantages related to the status of an employed person. Ms. Jurčić challenged this decision before the Central Office of the Fund but was rejected for the same reason.
Ms. Jurčić was also unsuccessful before the High Administrative Court and the Constitutional Court where she relied expressly on the Prevention of Discrimination Act. Both courts upheld the reasoning of the Central Office. The Gender Equality Ombudsperson supported Ms. Jurčić before the Constitutional Court.
The European Court of Human Rights outlined that usually States have a wide margin of appreciation in these scenarios but when there is a difference in treatment which is based on sex, that margin afforded to the State becomes narrow because the advancement of gender equality is a major goal for member states.
The Court first outlined that there has been a difference in treatment in Ms. Jurčić’s case since she was refused the status of an insured employee because her employment was declared fictitious due to her pregnancy which only women experience.
The Court then outlined that this difference in treatment was without objective and reasonable justification. The Court held that Ms. Jurčić’s pregnancy could not be considered fraudulent behaviour and that financial obligations imposed on the State during a pregnancy cannot by themselves constitute a sufficiently weighty reason to justify the difference in treatment. Thus, the State had violated Article 14 taken in conjunction with Article 1 of Protocol No.1 to the Convention.
The Court pointed out that an approach whereby pregnant women were automatically branded ‘suspicious’ was problematic.
Click here to read the full decision.