Situ­ation

A Pol­ish inde­pend­ent con­tract­or had been work­ing for a Pol­ish broad­caster for some time based on ser­vice pro­vi­sion con­tracts. With­in this broad­caster, the inde­pend­ent con­tract­or provided ser­vices in the edit­or­i­al and advert­ising depart­ment. In 2017, the broad­caster can­celled his ser­vices just before a week he was sched­uled to work and no longer offered him any new assign­ments. The inde­pend­ent con­tract­or believed this was because he and his part­ner had recently pro­duced and pos­ted a Christ­mas song on their You­Tube chan­nel pro­mot­ing tol­er­ance towards same-sex part­ners. The accom­pa­ny­ing music video depic­ted same-sex part­ners cel­eb­rat­ing Christ­mas. The inde­pend­ent con­tract­or con­tested the abrupt ter­min­a­tion of the assign­ment and sought com­pens­a­tion.

The Court was faced with the dis­cus­sion on wheth­er Sec­tions 3 and 17 of the European Dir­ect­ive on equal treat­ment in the work­place (here­in­after: ‘the Dir­ect­ive’) apply, as the inde­pend­ent con­tract­or had a ser­vice pro­vi­sion con­tract and not an employ­ment con­tract. Accord­ing to the com­pany in ques­tion and the Pol­ish gov­ern­ment, such pro­tec­tion is excluded in these con­tracts. The Court faced the ques­tion: does an inde­pend­ent con­tract­or have the right to the same pro­tec­tion against dis­crim­in­a­tion in the work­place as an employ­ee? And how does this relate to the free­dom of entre­pren­eur­ship and free choice of con­tract?

 

Rul­ing

The answer to the first ques­tion is yes. The term ’employ­ee’ in the Dir­ect­ive should be inter­preted broadly, accord­ing to the Court, allow­ing inde­pend­ent con­tract­ors to be included under this term. The Court bases this on the premise that the type of con­tract the ’employ­ee’ has does not mat­ter. Inde­pend­ent con­tract­ors can also receive the same pro­tec­tion as ’employ­ees’ under European law. The free­dom of entre­pren­eur­ship and free choice of con­tract do not jus­ti­fy refus­ing to offer con­tracts to inde­pend­ent con­tract­ors based on their sexu­al ori­ent­a­tion.

Fur­ther­more, it is import­ant to note that the Directive’s object­ive is not ’employ­ee pro­tec­tion’, but the elim­in­a­tion of dis­crim­in­a­tion-based bar­ri­ers to access­ing means of sub­sist­ence and the abil­ity to con­trib­ute to soci­ety through work, regard­less of the leg­al form in which that work is per­formed. It is required that the pro­fes­sion­al activ­it­ies are real and car­ried out with­in the frame­work of a leg­al rela­tion­ship char­ac­ter­ized by a cer­tain sta­bil­ity. Provid­ing a ‘single ser­vice’ or sup­ply­ing goods is not suf­fi­cient.

 

Con­sequences for employ­ers or con­tract­ors

With this rul­ing, the Court sends a clear sig­nal to com­pan­ies and con­tract­ors. They must not treat inde­pend­ent con­tract­ors dif­fer­ently based on their reli­gion, belief, dis­ab­il­ity, age, or sexu­al ori­ent­a­tion – regard­less of the type of con­tract they have with them. Once again, case law takes a step towards pro­tect­ing inde­pend­ent con­tract­ors, thereby nar­row­ing the dif­fer­ence between them and per­man­ent employ­ees.

 

ESG

HVG Law endorses the import­ance of ESG in the work­place. By work­ing with a team of ESG spe­cial­ists, HVG Law can help its cli­ents meet the highest stand­ards of ESG. Moreover, respons­ible entre­pren­eur­ship is inher­ent to the val­ues with­in HVG Law and the way HVG Law oper­ates. We are always eager to work with employ­ers to pro­mote and intro­duce ESG in the work­place.

Based on this rul­ing, it is cru­cial for employ­ers to review (or re-assess) their whis­tleblower schemes to ensure they are ESG proof. We are at your ser­vice to assist with this.

 

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