Izvorni znanstveni članak
A removal from the post of a pregnant member of a capital company's board of directors - discrimination based on sex?
Ivana Grgurev
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Petar Ceronja
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
Several questions were raised in the analysis of the judgment of the European Court of Justice in the Danosa case: Are board members workers or self-employed persons? If they fall under the definition of workers, should they be protected during pregnancy and while enjoying parental benefits from being removed from a company board and from
the termination of contract for carrying out activities in the board? Are the provisions of the Companies Act relating to the removal of board members aligned with EU acquis, considering that they do not feature a restriction, i.e. that they do not take into account the fact that a board member may be pregnant at the time of removal? In light of efforts
to reconcile pregnancy and parenthood with market demands, the following question arises: how does a company board whose pregnant member or member enjoying a parental benefit cannot perform her board duties for a longer period of time? The authors criticise the Danosa judgment for being focused on the protection of
women, rather than on the prohibition of discrimination on grounds of sex, and for not differentiating clearly between the position of board members in terms of the law of obligations and in terms of status law. They consider that, under Croatian legislation,
pregnant board members are guaranteed protection from discrimination on grounds of sex even without including pregnant board members in the concept of worker. In turn, the authors criticise Croatian national legislation for overly focusing on the protection of women, evidenced in the absolute ban on dismissals while the worker is enjoying parental
benefits, which can last for years. Furthermore, the authors do not believe that the latest amendments to the Act on Maternity and Paternal Benefits, which extend the duration of compulsory maternity leave, will contribute to a higher participation of women in the labour market, nor that the inclusion of board members in the concept of worker will
encourage appointment of women to company boards. The seriousness of the problem is underlined by the statistics indicating a small number of female board members in Croatia, but also in EU member states. Some national legislations have resorted to quota systems in the appointment of board members, and there are indications that a similar legislative initiative might be taken in EU law as well. The authors conclude that pregnancy could be successfully reconciled with market demands if the European Court of Justice and Croatian legislation were focused more on the prohibition of discrimination on grounds of sex, and less on broadening the scope of protection of women (which leads to their factual discrimination).
Ključne riječi
female member of a capital company’s board of directors; pregnancy; removal from the post; discrimination based on sex; Danosa case
Hrčak ID:
75508
URI
Datum izdavanja:
20.12.2011.
Posjeta: 4.741 *