The Constitutional Court took action against the hidden discrimination of persons working in public employment20 November 2017
As established by the Court: one of the statutory provisions challenged by the commissioner for fundamental rights unnecessarily restricts the public employee’s right to privacy in a discriminative way. Burdening the legal relation of public employment with an incompatible condition – connected to the neatness of the living environment – is an arbitrary decision of the legislator. Therefore the Constitutional Court established that the challenged regulation was contrary to the Fundamental Law and annulled it.
The commissioner for fundamental rights explained – among others – in his petition that according to the Act on public employment and on the amendment of Acts connected to public employment as well as on the amendment of other Acts, public employees shall be excluded from public employment for a period of three months if they fail to comply with their obligation of keeping their living environment (garden, yard etc.) tidy as required in a local government decree. According to the commissioner for fundamental rights, the mere fact that the legislator regulates public employment as a legal relation having special social elements does not justify in general the application of rules deviating negatively from that of employment relationships, and this is regarded as a violation of the rule of law. In the commissioner’s opinion the provisions are also contrary to the requirement of equal treatment as they impose discrimination on public employees without any reasonable and constitutionally justifiable aim, compared to persons employed under other legal relations.
The Constitutional Court interpreted the public employment program in the system of the Fundamental Law’s provisions and it established that, according to its content, the legal relation of public employment is a particular atypical form of employment with a function linked to the social system, i.e. the employment form under examination can be found in the intersection of social policy and employment policy.
The Constitutional Court also examined whether, in the case of persons wishing to enter into public employment, any discrimination has been caused within the group of jobseekers by the statutory regulation putting a well-delimitable group of the society in a disadvantageous situation by prescribing other conditions outside the scope of work. The persons participating in public employment are typically those in difficult financial situation, belonging to the most vulnerable layer of the society, with a remuneration even lower than the minimum wage. As established by the Constitutional Court: there is no reasonable justification whatsoever for the legislator to prescribe special rules of conduct merely for this specific group of jobseekers. It is a case of hidden discrimination based on one’s wealth status as, in fact, the law only applies to those who live in a disadvantageous and defenceless material situation, requiring to fulfil conditions unrelated to work.
The Constitutional Court underlined in its decision: although the Fundamental Law prescribes that everyone shall be bound to contribute to the performance of state and community tasks according to their abilities and possibilities, no conditions shall be prescribed, with reference to alleged or actual public interest, that violate without due ground the individuals’ freedom and fundamental rights. Accordingly, in the present case, the prescriptions of conduct not related to the content of the work to be performed shall be deemed as unnecessarily restricting the right to privacy and they shall be held unacceptable.
With due account to the above, the Constitutional Court held to be contrary to the Fundamental Law and annulled Section 1 para. (4a) b) and Section 1 paras (4b), (4f) and (4g) of the Act on public employment and on the amendment of Acts connected to public employment as well as on the amendment of other Acts. Judge Dr. Ágnes Czine attached a concurring opinion and Judges Dr. István Balsai, Dr. Egon Dienes-Oehm, Dr. Béla Pokol, Dr. László Salamon, Dr. Mária Szívós and Dr. András Varga Zs. attached dissenting opinions to the decision. The full text of the decision of the Constitutional Court is available on the Constitutional Court’s website in Hungarian language.
Budapest, 9 November 2017