Vyshnovetska S. V. Problems of Ensuring Equal Opportunities in the Context of Non-Admittance of Discrimination in the Labour Field
In the article an author analyzes the concept of discrimination on the basis of comprehensive research of legislation, scientific literature and case law. It is concluded that discrimination in labour law is a situation in which a person is subject to anti-discrimination grounds (race, colour of skin, political, religious and other beliefs, sex, age, ethnicity and social origin, citizenship, family and property status, place of residence, state of health, disability, pregnancy and motherhood, sexual orientation, lifestyle, language, outward appearance), not related to the business qualities, is subject to restrictions, the establishment of differences or exceptions in recognition, realization and using labour rights in any form that leads to violation of equal opportunities in the labour field, except when such restriction of rights, the establishment of differences or exceptions has a legitimate, objectively justified purpose, the means of achieving which are appropriate and necessary.
The author shares I. S. Sakharuk’s point of view that the category “benefits” is not appropriate to include in the content of the concept “discrimination in the labour field”. Providing benefits to some groups of people in labour law (in connection with the need to increase their competitiveness in the labour market or a particular area of labour activity) is aimed at improving their legal status, ensuring additional opportunities for realization of subjective rights. Instead, discrimination is always illegal because it restricts or makes impossible to exercise labour rights on equal basis.
Since the concept of discrimination is closely related and depends on the principle of equality, it is stated that true equality implies not only granting equal rights, but also creation of equal opportunities. Thus, the problems of differentiation in the legal regulation of labour are considered, the main purpose of which is to individualize the general legal norm in relation to categories of employees with diverse opportunities or those employed in different working conditions, i.e. to ensure equality of opportunity in the labour relations of different categories of employees.
Researching the EU case law, legal positions of the Constitutional Court of Ukraine, it is concluded that equality is violated if the differences do not have any objective justification. The purpose of implementation of such differences (requirements) in the legal status of employees should be substantial, and the differences themselves (requirements) – objectively justified, grounded and fair.
Key words: discrimination in labour law, advantages, equality of opportunities, equality of the rights, differentiation in legal regulation of labour.
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