RESPECT FOR PERSONAL DIGNITy RULE IN THE SPHERE OF THE EMPLOyMENT
2. Protection of employee’s personal dignity in the international legal acts
Personal goods of the employee are the subject of the protection of the international law, the community law (EU), and also Polish Constitution as well as other legal acts. The Universal Declaration of Human Rights (UDHR, 10th December 1948) in its preamble refers to the inherent dignity of every human being, constituting that rule as a base among other “ideas of justice”.4 Article 18th of the Declaration states that everyone has a right to the “freedom of thought, conscience and religion”.5
The place of work may create many dangerous situations, in which the sexual harassment may occur. Therefore a significant in its meaning is the recommendation no 19 to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW – adopted by UN General Assembly 18 December 1979), that deems the sexual harassment to be a kind of a sex-oriented discrimination.
Poland as a part of the Pacts is obliged to respect the contained regulations that have been agreed in 1980.
It is worth to note the articles no 7 and 12 of the International Covenant on Economic, Social and Cultural Rights (16th December 1996). The article no 7 recognizes “the right of everyone to the enjoyment of just and favorable conditions of work which ensure fair wages and equal remuneration for work of equal value without distinction of any kind. In particular women being guaranteed conditions of work not
3 j. Gałkowski, Jan Paweł II o godności człowieka, J. Czerkawski (ed.), Zagadnienie godności człowieka, Lublin 1994, p. 108.
4 K. Motyka, Prawa człowieka. Wprowadzenie. Wybór źródeł, Lublin 2004, p. 125.
5 Ibidem, p. 128.
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inferior to those enjoyed by men, with equal pay for equal work; and a decent living for themselves and their families in accordance with the provisions of the present covenant.”6
In 1945 the International Labour Organization (ILO) became a specialized organization within UN. Poland has ratified 80 conventions regarding the cooperation within that organization. A principle of the ILO activity is to support the employees life and health protection. Convention and the recommendations of ILO concerning security and protection of the health distinguish concrete hazards, that employees may be exposed to, warns of the hazards in the branches of industry and speaks generally of the technical standards, that must be abbiden regardless the kind of work executed.7
In the European Labour Law the main legal act regulating the rights of people employed in the area of European Union is the Community Charter of Fundamental Social Rights for Workers (9th December 1989). Article no 19 states as following: “Every worker must enjoy satisfactory health and safety conditions in his working environment.”
Dignity is a fundamental rule of the community law, while Charter of Fundamental Rights of the European Union (October 2000) in its article no 1 recognizes that “Human dignity is inviolable. It must be respected and protected.”9 Dignity is a source of rights and its violation means violating those rights included in the Charter with simultaneous encroaching of the unit’s integrity.
Personal rights listed in the chapter titled “Freedoms” refer to: Respect for private and family life, Protection of personal data, Freedom of thought, conscience and religion, Freedom of expression and information, Freedom to choose an occupation and right to engage in work.10 While article 21 of the Charter: “Any discrimination based
6 Ibidem, p. 133.
7 H. Szewczyk, Ochrona dóbr osobistych w zatrudnieniu, Warszawa 2007, p. 58.
Ibidem, p. 79.
9 K. Motyka, Prawa człowieka…, p. 255.
10 Ibidem, p. 256 and next.
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on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”11
In 1997 the European Union countries adopted the Treaty of Amsterdam. Article 2 of the Treaty states that gender equality is one of the main objectives of the Union to contribute to the harmonious and sustainable economic development, upgrading and quality of life, economic and social cohesion. The Amsterdam Treaty introduced to Part I of the Treaty establishing the European Community, entitled
“Principles”, article 13, which gave the Community new powers to combat discrimination. According with Article 13 of the Community may adopt measures necessary “to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”12 One of the main legal provisions concerning equality between women and men is article 141 of the Treaty of Amsterdam.
This provision prohibits discrimination and sets priorities for the EU in the field of equal rights for both sexes. These include the so-called running. positive discrimination and “gender mainstreaming”.
To implement the provisions of Article 13, the European Union adopted two Directives proposing minimum standards of legal protection against discrimination in the European Union:
- Council Directive 2000/43/EC of 29 june 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin
- Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
In 2006, the European Union adopted Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and
11 Ibidem, p. 258.
12 http://www.rownetraktowanie.gov.pl/dyskryminacja/dyskryminacja_ze_wzgledu (29.9.2011).
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occupation (repealing Directives 75/117/EEC, 76/207/EEC, 2002/73/
EC, 86/378/EEC, 96/97/EC, 97/80/EC, 98/52/EC).
An extremely important role in the adaptation of Polish law to the standards of the European Union law was the European Social Charter ratification by Poland.13 However, the Republic of Poland has not done the full ratification, and therefore not all aspects of the legislation has not been accepted by Poland. The European Social Charter14 was signed on 18 October 1961 in Turin, and from 25 july 1997 Poland is obliged to implement the following provisions referred to the employees. These include in particular:
- the right to freedom in forming associations on national and international level and collective bargaining
- the right to adequate, occupational health and safety conditions
- the right to earn for a living by working in freely chosen employment
- the right to use any possible ways that helps to ensure the best possible health level
- protection of dignity at work and protection against sexual harassment
- prohibition of forced labour
- fair working conditions for wage and working time - the right to strike
- access to employment for people with disabilities.
The European Committee of Social Rights will assess whether the state met the obligations under the Charter. Its fifteen independent and impartial members are elected by the Council of Europe Committee
13 Dz.U. of 1999, No 8, item 67
14 The European Social Charter (hereinafter referred to as “the Charter”) sets out rights and freedoms and establishes a supervisory mechanism guaranteeing their respect by States Parties. It was revised, and the 1996 Revised European Social Charter, which came into force in 1999, is gradually replacing the initial 1961 treaty. 43 States have ratified either the 1961 Charter or the Revised Charter. Three Protocols have been added to the initial 1961 treaty: Protocol No. 1 (1988) which adds new rights – Protocol No. 2 (1991) which reforms the procedure of control regarding reports – Protocol No. 3 (1995) which provides for a procedure of collective complaints.
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of Ministers for period of six years, renewable once. The Committee shall decide whether the law and practise of the States Parties to violate or comply with the Charter (article 24 of the Charter of the Turin Protocol of 1991). A monitoring procedure based on national reports: Every year the States Parties submit a report indicating how they implement the Charter in law and in practice. Each report concerns some of the accepted provisions of the Charter. The Committee examines the reports and decides whether or not the situations in the countries concerned are in conformity with the Charter. Its decisions, known as “conclusions”, are published every year.15 Council of Europe seems to act known as the Convention – they are not binding, serve as guidelines and standards from the law (soft-law). The Committee interprets also the different articles of The European Social Charter, and article 20 guarantees the right to equality at all stages of working life – access to employment, remuneration and other working conditions, including dismissal and other forms of detriment, vocational training and guidance and promotion. These words give Article 20 the status of lex specialis in relation to Article 1 § 2 of the Charter, which prohibits all discrimination at work on whatever ground.16
Discrimination in breach of the Charter is constituted by a difference in treatment between people in comparable situations which does not pursue a legitimate aim and is not based on objective and reasonable grounds.17 Indirect discrimination occurs where a rule, identical for everyone, disproportionately affects men or women without a legitimate aim. Equal treatment of full-time and part-time employees is considered from this angle in particular in respect of social security issues.18 Indirect discrimination can also occur when people in different situations are not treated differently.
Referring to the case-law of the European Court of Human Rights (Thlimmenos v. Greece, Complaint No. 34369/97, ECHR 2000-IV,
15 http://www.coe.int/lportal/web/coe-portal (28.9.2011).
16 Ibidem, (28.9.2011).
17 Syndicat national des Professions du Tourisme v. France, Complaint No. 6/1999, Decision on the meritsof 10 October 2000, § 25.
18 http://www.coe.int/lportal/web/coe-portal (28.9.2011).
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§ 44), the Committee has stated that the Charter prohibits all forms of indirect discrimination which can arise “by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all”19 and requires that particular measures are taken to meet the specific needs of persons whose situation distinguishes them from the majority.20
3. The control of employee and the obligation to care