The ombudsman’s petition to the Constitutional Court for the protection of labour legislation of pregnant women - AJBH-EN
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null The ombudsman’s petition to the Constitutional Court for the protection of labour legislation of pregnant women
The ombudsman's petition to the Constitutional Court for the protection of labour legislation of pregnant women
AJB-6468/2012
The ombudsman's petition to the Constitutional Court for the protection of labour legislation of pregnant women
The Commissioner for Fundamental Rights considers the provision of the new Labour Code flawed, according to which the pregnant employee may invoke the protection against termination only if she notified the employer of her pregnancy before the disclosure of the termination. According to Máté Szabó, the obligation of preliminary notification violates pregnant women's human dignity and their right to privacy. Consequently, the Commissioner resorted to the Constitutional Court for a review.
A complainant asked the Commissioner to initiate the constitutional review of the provision because according to him, pregnant women are sanctioned by the rule stating that a woman who has not notified her employer of her pregnancy may be dismissed without legal restriction by ordinary termination. The ombudsman found the complaint well-founded based on the case-law of the Constitutional Court and the international case-law, and he asked the Constitutional Court to annul the contested provision.
Although the protection of pregnant women and women with children is not set out in the text of the Fundamental Law, the obligation of rights protection of the state may, however, be deducted from its several provisions. The Commissioner for Fundamental Rights said that in the world of work, the prohibition of termination is one of the most typical and general means of this rights protection. Hungary's commitments to the international human rights defence and the European Union's rights protection also contain the duties related to the additional protection of labour legislation and the protection against termination for pregnant women.
The entitlements granted by law, such as the working time benefits, are obviously bound to the notification of pregnancy, but the use of the benefits depends on the employee's free decision in this case. The protection against termination is not such a legal institution. It does not require a special measure from the employer. The ombudsman pointed out that it is "activated" only then if the employer intends to dismiss a pregnant employee.
According to Máté Szabó, the provision of notification has to be supported constitutionally by the lawmaker since in this case the information concerned is related to the woman employee's most personal internal sphere, her state of health and marital status. In the first three months after the conception, the pregnancy may be aborted due to several reasons. In such cases, the preliminary notification may lead to an unreasonably humiliating situation offending the innermost privacy, since the employer has to be notified of the abortion of the pregnancy as well.
According to the Commissioner, the regulation creates a decision making dilemma for a pregnant woman, offending her dignity. The ombudsman considers that the notification is not suitable for the prevention of eventual abuses, either. It lacks a rational justification as well as a legitimate objective.