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Thursday 5th April 2012
Refusal to Grant Serviceman Parental Leave Constitutes Sex Discrimination
London, 5 April 2012
On 22 March 2012, the Grand Chamber of the European Court of Human Rights (the Court) delivered its judgment in the case of Konstantin Markin v Russia. The case concerned a Russian military serviceman who had been denied parental leave, unlike his female counterparts. The Court found that Russia had violated Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights (the Convention).
The Applicant brought a claim before the Court alleging that he had been discriminated against on grounds of sex. At the material time, the Applicant was a military serviceman and a single parent with a new-born child. He applied for three years’ parental leave and his request was rejected because three years’ parental leave was available only to female military personnel.
The Court held that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention. In reaching its decision, the Court considered that the main issue to be ascertained was whether the difference in treatment between servicemen and servicewomen was objectively and reasonably justified.
The Court found the government’s assertion that its policy in respect of parental leave amounted to positive discrimination to be misplaced, stating that it did not have the purpose of removing women’s disadvantage and had the effect of perpetuating gender stereotypes, and was disadvantageous both to women’s careers and men’s family life. The Court rejected the idea that prevailing traditions and the perception of women as primary child-carers and men as primary breadwinners, could amount to sufficient justification for such a difference in treatment.
The Court acknowledged the “special armed forces context” of the case, which is “intimately connected with the nation’s security”, meaning that the state is afforded a particularly wide margin of appreciation. It also found that while it may be justifiable to exclude from the entitlement to parental leave any personnel, male or female, who may not easily be replaced in their duties, in Russia the entitlement to parental leave depended exclusively on the sex of the military personnel:
Such a general and automatic restriction applied to a group of people on the basis of their sex must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 14.
In relation to the Government’s argument that by signing a military contract the applicant had waived his right not to be discriminated against, the Court also concluded that:
In view of the fundamental importance of the prohibition of discrimination on grounds of sex, no waiver of the right not to be subjected to discrimination on such grounds can be accepted as it would be counter to an important public interest.
To read a case summary of Konstantin Markin v Russia click here.
To read the judgment in Konstantin Markin v Russia click here.