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Kraków court asks CJEU about discrimination

The Regional Court in Kraków has sent a request for a preliminary ruling to the Court of Justice of the European Union, asking about the interpretation of the concept of discrimination. The court’s question is whether EU law prohibits an employer’s conduct of differentiating the situation within a group of employees distinguished on the basis of a protected characteristic.

The request for a preliminary ruling was sought by Ms Anna Maria Niżankowska-Horodecka and Ms Magdalena Podskalna, attorneys from Niżankowska, Szumielewicz – Adwokaci i Radcowie Prawni sp.p., who agreed to provide pro bono representation to a client of the Helsinki Foundation.

Izabella’s case

Izabella was employed in a Cracow hospital as a psychologist. In 2011, she received a medical certificate confirming a moderate degree of disability, which she gave to her employer. In 2015, a notice was posted at the hospital’s intranet site, informing that a special allowance had been granted to employees who would provide a disability certificate.

The allowance was granted on an individual basis to certain staff members, in accordance with a unilateral decision of the hospital’s administrator. The allowance was to be granted only to persons who submitted a disability certificate after 1 September 2014, regardless of its date of issue. Izabella did not receive an allowance because she had filed her disability certificate at a much earlier date.

District court: no discrimination

A district court ruled that Izabella was not entitled to a claim for payment of a salary supplement and found no discrimination in the case. The court admitted that the employer had used a dubious criterion for the payment of the allowance but resolved that there were no grounds for finding that the employer applied a prohibited criterion of differentiation of employees within the meaning of the Polish Labour Code. The court held that the differentiation of workers according to the date of their submissions of the document was not a differentiation based on a personal characteristic and as such was not discriminatory.


Izabella’s attorneys challenged the unfavourable judgment arguing that the criterion used by the hospital was discriminatory and that there were no objective reasons to justify differentiation within the category of employees with disabilities.

In the appeal, the attorneys alleged that the date of filing a disability certificate is only an ostensibly objective criterion of differentiation between situations, which in effect led to the unfavourable treatment of certain persons with disabilities, namely those who have had a permanent disability certificate for a long time and were prompted to expeditiously submit such certificate to their employer by reasons such as their state of health.

Preliminary reference

Appearing before the Regional Court in Kraków, Izabella’s attorneys submitted that the interpretation of EU laws on the equal treatment of employees may be of significance for the case and that it may, therefore, be necessary to refer a question to the Court of Justice of the European Union for a preliminary ruling.

This led the Regional Court to refer the following question to the CJEU: “Should Article 2 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation be interpreted as meaning that the differentiation of the situation of individuals belonging to a group distinguished by a protected characteristic (e.g. disability) constitutes a form of infringement of the principle of equal treatment if the intra-group differentiation made by the employer is based on an apparently neutral criterion but that criterion cannot be objectively justified by a legitimate aim and the measures taken for that aim are not appropriate and necessary?”

EU law prohibits all forms of discrimination against persons with disabilities in employment. However, relevant directives explicitly refer to violations of the principle of equal treatment of persons with disabilities in the context of them being compared with other persons. The CJEU will have the opportunity to decide whether EU equality provisions also apply to the differentiation of situation within a group of workers distinguished on the basis of a given characteristic.

The case is conducted by the HFHR’s Strategic Litigation Programme.

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