It is increasingly recognised worldwide that the responsibility for taking care of children ought to be shared between parents instead of being the sole responsibility of women. Male and female employees, therefore, should be equally entitled to parental leave. However, in Russia, policemen are only granted parental leave if their children lack maternal care, while policewomen’s entitlement to such leave is unconditional. On 6 July 2021, the European Court of Human Rights (‘ECtHR’) rendered its judgement in Gruba and Others v Russia, holding that this distinction failed to meet the condition of objective and reasonable justification under Article 14 of the European Convention on Human Rights (‘ECHR’).
This case concerns four Russian policemen, who failed to prove that it was ‘totally impossible’ for their wives to take care of children and subsequently were denied parental leave. In its case-law, the Russian Constitutional Court had held that police officers performed ‘constitutionally important functions’ and therefore had ‘a special legal status’. By agreeing to exercise such services, they voluntarily waived their civil rights and freedoms as ‘inherent in that type of public service’, which aimed to create efficient services. The limitation on policemen’s conditional entitlement to parental leave was further justified by ‘the special social role of women associated with motherhood’. Moreover, the Russian authorities referred to Konstantin Markin v Russia, where the Court found a violation as male military personnel was entirely forbidden to apply for parental leave to which female military personnel was unconditionally entitled. Comparing the two cases, the Russian authorities contended that the present case did not concern such an absolute prohibition as policemen were granted parental leave if their children were not receiving maternal care.
In its ruling, the ECtHR recognised that a difference of treatment was established as the right to parental leave is unconditional for policewomen but not for policemen. However, the ECtHR held that this distinction was not objectively and reasonably justified. First, in line with the Konstantin Markin case, the ECtHR reiterated that gender stereotypes, including the perception that women are primary caregivers, could not justify the differential treatment between men and women. Moreover, given ‘the fundamental importance of the prohibition of discrimination on grounds of sex’, the ECtHR could not support the argument that signing a police service contract led to a waiver of the right not to be discriminated against.
Regarding the argument based on the special status of the police, the ECtHR acknowledged that limitations on the rights of policemen to maintain their operational effectiveness pursued a legitimate aim, especially because police officers perform services in the public interest. Additionally, a distinction ‘based on an inherent requirement’ of certain job types is permitted under ILO Convention No 111 concerning Discrimination in Respect of Employment and Occupation, as submitted by the Russian authorities. However, the ECtHR determined that the limitation of the right to parental leave—which was exclusively imposed on policemen but not on policewomen—could not be regarded as an inherent requirement for the police. In particular, the ECtHR found that the entitlement to parental leave was solely based on the sex of police officers rather than other circumstances relating to their operational effectiveness.
In light of the lack of any balancing exercise performed by the Russian authorities to demonstrate that granting policemen parental leave would undermine the purported operational effectiveness of the police, the ECtHR held that the difference in treatment between policemen and policewomen lacked objective and reasonable justification and therefore amounted to sex discrimination.
Following the significant precedent of Konstantin Markin v Russia, this case is a welcomed addition to the ECtHR’s jurisprudence on sex discrimination. While acknowledging that individuals performing certain types of public service may be subject to limitations on civil rights and freedoms, the Gruba decision holds that they are not deprived of the right not to be discriminated on the grounds of sex. In this connection, the ECtHR again demonstrated its strong position in combating gender stereotypes by asserting that women should not be perceived as primary caregivers and that refusing men parental leave requires solid evidence showing that their absence will reduce the operational effectiveness of specific jobs.
Hannah Ji-Jia Liu
Hannah Ji-Jia Liu is a Research Assistant at Institutum Iurisprudentiae, Academia Sinica. She holds an Advanced LL.M. in European and International Human Rights Law from Leiden University.
Source: https://ohrh.law.ox.ac.uk/
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