Discrimination against self-employed workers based on their sexual orientation
The Court of Justice has ruled that sexual orientation cannot be used as a reason for refusing to conclude or renew a contract for services with a self-employed worker. The case concerned a Polish self-employed worker who specialises in the preparation of audiovisual material. He and his partner published a video on YouTube, calling for tolerance towards same-sex couples. The public corporation with which he had recently concluded a new contract then cancelled this contract, and has no longer used his services since that time. The Court states that occupational activities that fall within the scope of Directive 2000/78 (s. Harassment and violence at work), which aims to combat discrimination, can include those carried out by self-employed workers, provided they are “genuine and are pursued in the context of a legal relationship characterised by a degree of stability”. The Court emphasises that the concept of “dismissal” referred to in the directive also covers “the unilateral termination of any activity” performed by a self-employed person. It explains that “just as an employed worker may involuntarily lose his or her job following, for example, a ‘dismissal’, a person who has been self-employed may also find himself or herself obliged to stop working due to his or her contractual counterparty and thus be in a vulnerable position comparable to that of an employed worker who has been dismissed”. The facts surrounding the “termination of contract” appear to constitute “an involuntary termination of activity of a self-employed person which may be assimilated to dismissal of an employee”.
