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Beware of ‘Positive Discriminatory’ Measures

May 2019 - Employment. Legal Developments by Mamo TCV Advocates.

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Court of Justice of the European Union slams a provision of Austrian law.

In a judgment delivered recently by the Court of Justice of the European Union, Austrian legislation was in the limelight. A particular law provided that Good Friday was a paid public holiday for members of certain religious congregations only. If a member of such a congregation did work on that day, he was entitled to additional pay. Such an entitlement was not based on any condition that the employee in question had to perform a particular religious duty during that day. Therefore, the employee was free to choose how to spend his time during that day. The Court held that the situation of such an employee was not any different from that of all other employees who wished to have a rest period during Good Friday but who were not entitled to a corresponding public holiday. 

The Court concluded that the national legislation in question had the effect of treating comparable situations differently on the basis of religion, which amounted to direct discrimination. Moreover, the Court also stated that until Austria amended its legislation, private employers were obliged to grant to their other employees a public holiday on Good Friday.