Self-employed was protected against discrimination

Over seven years, a self-employed person had concluded a series of contracts for providing services to a TV channel in Poland. Among other things, he had been editing broadcasts and making trailers for the company. However, two days after publishing his music video about tolerance for same-sex couples, the company decided to cancel the contract and stop offering him renewals.

He took the case to court in Poland, where he submitted a claim for compensation on the grounds of discrimination due to his sexual orientation.

Therefore, the European Court of Justice had to consider whether the non-discrimination rules covered self-employed persons and if the decision to stop the contract renewal constituted discrimination based on sexual orientation.

Genuine and stable work is crucial

Self-employed persons can be covered by the non-discrimination rules, subject to certain conditions. The decision not to renew the contracts also constituted discrimination based on sexual orientation.

When determining whether the non-discrimination rules cover self-employed persons, it plays a role if the work performed is characterized by a degree of stability. In this case, the self-employed person had worked consistently for the company. He had been providing his services on a personal and regular basis, and the money from the company had almost been his entire income.

The European Court of Justice also considered that the decision not to renew the contracts on the grounds of sexual orientation was covered by the non-discrimination rules. The reason was that the decision was equivalent to terminating an actual employee. As a result of the decision not to renew the contracts, the self-employed person had lost his income and been put in a vulnerable position, just as a terminated employee would have been.

IUNO’s opinion

In this case, the European Court of Justice considered the scope of the EU directive establishing a framework for equal treatment in employment and occupation. This EU directive was implemented with the Danish rules on non-discrimination in the labour market. With this decision, it may be unlawful to discriminate against self-employed persons from now on.

Under the non-discrimination rules, there is also a prohibition to discriminate based on religion, belief, disability, or age, for example. Although this case is related to discrimination on the grounds of sexual orientation, the outcome could be the same in other cases. We have previously written about the rules on age discrimination here.

Generally, IUNO naturally recommends that companies are careful not to discriminate against anyone. However, from now on, companies should be particularly attentive to the fact that it is not only regular employees who are protected against discrimination. The scope of protection may extend to consultants and other self-employed persons.

[The European Court of Justice’s judgment of 12 January 2023 in case C-356/21]