Decision on merits; Subjects: WOMEN'S RIGHTS, GENDER DISCRIMINATION, BELARUS; [CEDAW: Frauenrechtskonvention, Übereinkommen zur Beseitigung jeder Form von Diskriminierung der Frau; Convention sur l'élimination de la discrimination à l'égard des femmes]
Volltext (verifizierbarer Originaltext)
United Nations
CEDAW/C/85/D/150/2019
Convention on the Elimination
of All Forms of Discrimination
against Women
Distr.: General
6 June 2023
Original: English
23-10761 (E) 140623
*2310761*
Committee on the Elimination of Discrimination
against Women
Views adopted by the Committee under article 7 (3) of the
Optional Protocol, concerning Communication
No. 150/2019*,**
Communication submitted by:
N.M. (represented by Center for Promotion
of Women’s Rights – Her Rights)
Alleged victim:
Natalya Metelitsa
State party:
Belarus
Date of communication:
19 September 2019 (initial submission)
References:
Transmitted to the State party on
23 October 2019 (not issued in document
form)
Date of adoption of views:
15 May 2023
1.1 The author of the communication is N.M., a national of Belarus born in 1986.
The author claims that Belarus has violated her rights guaranteed under articles 2 (a)–
(d), 5 (a) and (b), 11 (1) (a) and (c), and 11 (2) (a), in conjunction with article 1 of the
Convention, given that she was dismissed while on maternity leave and was thus
indirectly discriminated on the grounds of sex. The Optional Protocol entered into
force for the State party on 3 May 2004. The author is represented by the Centre for
Promotion of Women’s Rights – Her Rights.
Facts as submitted by the author
2.1 On 1 January 2014, the author has been employed as a bailiff by the Principal
Department of Justice in the city of Novopolotsk. Her one-year contract was extended
twice, to 31 December 2015 and 31 December 2016, respectively. On 21 April 2016,
she gave birth, and on 5 July 2016, her maternity leave was approved for a period of
time lasting until the child reached the age of 3, as provided for in article 185 of the
Labour Code of the Republic of Belarus.
* Adopted by the Committee at its eighty-fifth session (8–26 May 2023).
** The following members of the Committee participated in the examination of the present
communication: Brenda Akia, Hiroko Akizuki, Nicole Ameline, Marion Bethel, Leticia Bonifaz
Alfonzo, Ms. Rangita De Silva de Alwis, Corinne Dettmeijer-Vermeulen, Esther Eghobamien-
Mshelia, Hilary Gbedemah, Yamila González Ferrer, Dafna Hacker Dror, Nahla Haidar,Dalia
Leinarte, Marianne Mikko, Ana Pelaez Narvaez, Bandana Rana, Rhoda Reddock, Elgun
Safarov, Genoveva Tisheva and Jie Xia.
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2.2 On 22 August 2017, the author received a letter from her employer informing
her of essential changes in work conditions,1 namely that her post would be abolished
and replaced by a position of a referent/reference officer in the framework of
implementation of Presidential Decree No. 142 of 1 May 2017 on optimizing the
system of State organs in Belarus. The author was offered a new position, which was
a technical one and not a civil service post like that of bailiff. The author decided to
refuse the new position and was dismissed on 29 August 2017 for refusal to accept
the change in work conditions in accordance with article 35 (2) (5) of the Labour
Code.
2.3 On 1 September 2017, the author filed a civil suit to the October District Court
in Vitebsk, asking to be reinstated in her post and compensated for moral damage
suffered. She argued that her dismissal during maternity leave was unlawful and that
the justification for the dismissal offered by the employer was wrong. The employer ’s
justification for her dismissal relied on her refusal to accept new work conditions
under article 32 of the Labour Code; however, she was essentially transferred to a
new post, which is not covered by the mentioned article. She argued that, because of
the stress caused to her by the dismissal, she had had to call an ambulance and that
she had lost her milk.
2.4 On 9 October 2017, the October District Court rejected the author’s suit. The
Court found that dismissal in connection with change of work conditions under article
35 (2) (5) of the Labour Code could not be seen as dismissal on the initiative of the
employer and that, therefore, the guarantees concerning women on maternity leave
were not applicable in such cases.
2.5 On an unspecified date, the author submitted a cassation appeal to the Vitebsk
Regional Court. She pointed out that 4 out of 12 bailiffs had been fired by her
employer during reorganization and that the criteria for her transfer to a different post
had not been explained to her. She argued that her dismissal was discriminatory on
the basis of a presumption that women on maternity leave need their jobs less than
men. The Regional Court rejected the author’s appeal on 23 November 2017. The
author filed a supervisory review appeal with the Vitebsk Regional Court on 21 March
2018. Her appeal was rejected on 20 April 2018. On 24 June 2018, the author filed a
supervisory review appeal with the Supreme Court, which was rejected on 13 August
2018.
Complaint
3.1 The author claims that her rights under article 2 (a)–(c) of the Convention have
been violated because the State party failed to protect her from discrimination or
provide her with an effective remedy and compensation for the damages suffered and
did not revise the legislation leading to her dismissal in accordance with the principles
of the Convention.
3.2 The author alleges a violation of article 5 of the Convention because the
authorities, hindered by established prejudices, failed to identify discrimination in her
dismissal and to take measures for its elimination (article 5 (a)). She also claims that
the authorities failed to consider under article 5 (b) the best interests of the child,
whom she was breastfeeding at the time of dismissal, which caused her stress and
resulted in loss of milk.
3.3 The author claims a violation of articles 11 (1) (a) and (c) and 11 (2) (a) in
conjunction with article 1 of the Convention. She alleges that her right to work and
__________________
1 Article 32 (2) of the Labour Code provides a definition of essential changes in work conditions.
According to article 32 (1), the employee continues to work within his/her speciality,
qualification and position.
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free choice of profession or type of work was violated because she was dismissed
unlawfully and lost her status of State civil servant as a result of discrimination based
on her maternity leave. She claims that her dismissal while she was on maternity leave
was discriminatory under article 1 of the Convention because the grounds on which
she was dismissed mostly affect women.
State party’s observations on admissibility
4.1 On 24 December 2019, the State party submitted its observations on the
admissibility of the communication. The State party submits that the communication
should be declared inadmissible under articles 4 (1) and 4 (2) (c) of the Optional
Protocol.
4.2 The State party notes that the author failed to exhaust domestic remedies, as she
did not submit a supervisory review appeal to the Office of the Vitebsk Regional
Prosecutor and to the Prosecutor General.
4.3 The State party submits that individuals discriminated in the sphere of
employment can complain before courts under article 14 of the Labour Code. The
State party also provides statistics on labour disputes examined by courts. 2 According
to those statistics, more than 30 per cent of the petitioners were reinstated in their
posts.
Author’s comments on the State party’s observations on admissibility
5.1 On 23 January 2020, the author submitted comments on the State party’s
observations on admissibility.
5.2 The author challenges the State party’s argument that the communication should
be declared inadmissible for lack of exhaustion of all available domestic remedies.
She contests the effectiveness of the supervisory review appeal to the Office of the
Vitebsk Regional Prosecutor and to the Prosecutor General and refers to the
jurisprudence of the Human Rights Committee, which does not consider a supervisory
review by a prosecutor’s office to be an effective remedy that has to be exhausted for
the purposes of admissibility.
5.3 The author also claims that domestic law allows the prosecutor to protest a final
court decision to the higher court. She states that, even though her case was widely
publicized, the Office of the Prosecutor did not take any initiative to protest the final
court decision in her case.
5.4 The author also informs the Committee on the Elimination of Discrimination
against Women that her former employer is spreading information about her
complaint submitted to the Committee in order to create a negative image of her at
her new workplace.
State party’s observations on the merits
6.1 On 7 May 2020, the State party submitted its observations on the merits.
6.2 The State party recalls that the author worked as a bailiff in the Enforcement
Department of Novopolotsk on a contractual basis. By Order No. 206-k of 17 May
2016, she was granted social leave to care for a child up to the age of 3 for the period
from 5 July 2016 to 19 April 2019.
6.3 The State party submits a detailed account about the primary and secondary
legislation regulating labour matters and disputes. It explains that under article 32 (1)
of the Labour Code, the employer has the right to change the essential conditions of
__________________
2 In 2018, 9,162 civil cases; in 2017, 10,919 cases; and in 2016, 12,843 cases.
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work for justified industrial, organizational or economic reasons by notifying the
employee in writing within a set period of time. In accordance with paragraph 3.2 of
Presidential Decree3 No. 5 of 15 December 2014 on strengthening requirements for
managerial staff and employees of organizations, in 2017 the employer was obliged
to notify the employee at least seven calendar days in advance of a change in the
material conditions of employment.
6.4 Presidential Decree No. 142 of 1 May 2017 on the optimization of the system
of State bodies (Decree No. 142) stipulated the specifics of dismissal of civil servants
during the optimization of State bodies, as well as additional guarantees for
employees whose positions are subject to optimization. In the case of a discrepancy
between a presidential decree and a law of Belarus, the law shall prevail only when
the power to issue the decree has been conferred by law.4 Article 5 of the Labour Code
provides that the Labour Code applies to the employment and related relations of
certain categories of workers in the cases and within the limits prescribed by special
legislative acts defining their legal status. Decree No. 142 is a special piece of
legislation that defines the way in which public organs are to be streamlined.
6.5 Pursuant to Decree No. 142 and Resolution No. 334 of the Council of Ministers
of 6 May 2017 on the implementation of measures to optimize the system of State
bodies, the Ministry of Justice issued Order No. 109 of 30 June 2017 on approving
the structure and staffing level of territorial enforcement bodies, whereby the
structure and staffing of the territorial bodies of judicial enforcement were approved,
including the Novopolotsk judicial enforcement department, where the author
worked.
6.6 While there were eight bailiff posts in the staffing table of the division in August
2017, as of 1 September 2017, the staffing table of the division includes four bailiff
posts and four referent/reference officer posts. All positions of bailiff in the division
are held by women. On 22 August 2017, the author was warned about the abolition
of her position as a bailiff and was therefore offered another job as a reference officer
in the Novopolotsk enforcement department as of 1 September 2017. Thus, she was
duly warned about the changes in the structure and staffing of the enforcement
department caused by the optimization of the system of State bodies. The State party
submits that the employer took steps to secure her employment. However, the author
refused to be transferred to the proposed post of assistant.
6.7 The State party affirms that, given the circumstances described above, the
employer had legal grounds for terminating the employment relationship with the
author in accordance with article 35 (2) (5) of the Labour Code. 5
6.8 When deciding on the transfer of employees from the position of a bailiff to the
position of reference officer, the main justice department of the Vitebsk Regional
Executive Committee was guided by such criteria as length of service,
professionalism and experience in the position of bailiff, as assessed by the employer.
The author’s indicators were inferior to those of other bailiffs of the department. This
fact is also confirmed by the fact that, on 26 November 2015, the employer considered
termination of the author’s employment based on her performance, of which she was
__________________
3 Pursuant to article 1 of the Law of the Republic of Belarus on normative legal acts of the
Republic of Belarus, a presidential decree is a legislative act.
4 Article 137 (3) of the Constitution of the Republic of Belarus.
5 Employee’s refusal to continue work due to a change in the material conditions of employment.
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notified accordingly. However, after the author submitted a certificate of pregnancy,
her contract was extended in accordance with labour law. 6
6.9 The State party contests as untrue the information given in the author’s
communication with regard to the assignment of the highest civil servant class to her.
According to the State party, on 29 January 2014, the author was awarded the seventh
class of civil servant. 7 The fact that the author’s contract was extended after she
submitted a certificate of pregnancy and that her employer provided her with an
opportunity to be employed under the conditions of optimization of the public
administration system while she was on maternity leave indicates that the argument
that her dismissal was based on gender stereotypes is unfounded.
6.10 On the allegations of violation of articles 11 (1) (a) and (c) and 2 (a) in
conjunction with article 1 of the Convention, the State party responds that, under
article 41 (1) and (2) of the Constitution, citizens are guaranteed the right to work as
the most dignified means of self-assertion, or the right to choose a profession,
occupation and work in accordance with one’s vocation, abilities, education and
training and in accordance with social needs; to healthy and safe working conditions;
and to equal protection of rights and legitimate interests without any discrimination.
State policy for the promotion of employment is aimed at ensuring equal opportunities
for all citizens regardless of sex, race, nationality, language, religious or political
beliefs, membership or non-membership in trade unions or other voluntary
associations, property or occupational status, age, place of residence, or physical or
mental disabilities, provided that they do not hinder the performance of corresponding
work duties or other circumstances unrelated to business qualities.
6.11 Pursuant to article 8 (1) of the Convention concerning the revision of the
Maternity Protection Convention (Revised), 1952,8 it is unlawful for an employer to
dismiss a woman during her pregnancy or absence from work in connection with the
leave provided for in articles 4 or 5 of the Convention or in the period following her
return to work established by national law, except for dismissal for reasons unrelated
to pregnancy or childbirth and its consequences or to nursing an infant.
6.12 The State party submits that its legislation contains restrictive rules on the
dismissal of pregnant women and women on maternity leave. Under article 43 (2) of
the Labour Code, an employee may not be dismissed on the employer’s initiative
during a period of temporary incapacity for work (except in the case of dismissal
under article 42 (6) of the Labour Code) or when the employee is on leave. The
grounds for dismissal on the employer’s initiative are listed in article 42 of the Labour
Code. Under article 268 of the Labour Code, an employer may not terminate the
labour contract of pregnant women or women with children under the age of 3, except
in the event of liquidation of the enterprise, termination of a branch, representative
office or other separate subdivision of the enterprise located in another area, or
termination of a self-employed person, or on the grounds set out in article 42,
paragraphs 4, 5, 7 and 9, or article 47 of the Labour Code. An employer may not
terminate the labour contract of a single mother with children between the ages of 3
and 14 (or with children with disabilities under the age of 18), except in the event of
liquidation of the organization, termination of a branch, representative office or other
__________________
6 Article 2615 of the Labour Code stipulates the employer’s obligation to extend the term of the
contract with a pregnant woman, with her consent for the period of pregnancy or for another
period as agreed by the parties; and with a working woman who is on maternity leave, a mother
(father instead of mother, guardian) who is on maternity leave to care for a child under the age
of 3, at least until the end of said leaves.
7 Under article 11 (2) of the Law on Civil Service in Belarus, the highest class and 12 classes are
established for civil servants, of which the twelfth class is the lowest.
8 Signed in Geneva on 15 June 2000.
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location of the organization, termination of a sole proprietorship, or on the grounds set
out in article 42, paragraphs 2, 4, 5, 7 and 9, or article 47 of the Labour Code.
6.13 The termination of the employment relationship with the author based on article
35 (2) (5) of the Labour Code9 (an employee’s refusal to continue working due to a
change in the material conditions of employment) is not related to her being on
parental leave and is not a dismissal on the employer’s initiative. Thus, the procedure
and conditions set out in article 43 of the Labour Code (for cases of dismissal at the
employer’s initiative) do not apply.
6.14 The author considers her dismissal unlawful because the employer dismissed
her while she was caring for a child under the age of 3, which, she points out, is a
period of temporary incapacity for work, according to Decree No. 569 of the Council
of Ministers of 28 June 2013. The State party notes that subparagraph 2.1 of the
Regulation on the Procedure for Providing Benefits for Temporary Incapacity for
Work and Maternity, approved by Decision No. 569 of the Council of Ministers of
28 June 2013, provides for the granting of temporary disability allowance to care for
a child under the age of 3 in case of illness of the mother or other person who takes
care of the child. As for the mother, article 185 of the Labour Code provides working
women, irrespective of their length of service, with a leave to care for a child up to
the age of 3 after the end of their maternity leave, if they so wish. Accordingly, such
a woman is not temporarily incapable of work.
6.15 While caring for a child under the age of 3, both working people on maternity
leave and non-working people caring for a child under the age of 3 receive the same
amount of State guarantees. Given that the author did not start work at the end of her
maternity leave, but took maternity leave to care for a child under the age of 3 (i.e.
she had no employment income in the form of wages), her financial situation did not
change owing to her dismissal during this period.
6.16 The State party asserts that, during the period of care for a child under the age
of 3 in Belarus, social and economic support is provided to all categories of persons
caring for a child. Having regard to the circumstances of the author’s case, the State
party considers unfounded the arguments that the transfer to the post of
referent/reference officer could damage her employment situation and further
promotion, as well as restrict her right to choose her employment and her freedom to
accept it.
6.17 The State party also notes that, in accordance with article 45 of the Law of the
Republic of Belarus on public service in Belarus, length of public service is taken
into account when awarding grades of public servants; establishing premiums for
length of service; determining the duration of additional leave; retirement; payment
of severance pay in cases provided for by this Law; and the appointment of pensions
and monthly cash allowance. In this case, the periods of employment counted (i.e.
included) in the length of public service are summed up irrespective of the period of
interruption in work. When a civil servant returns to the civil service from which he
or she has previously resigned, he or she also retains the class assigned to him or
her.10 Accordingly, if the author were to re-enter the civil service in the future, she
would retain her civil servant class, unless a higher class was provided for in the new
position, and all her years of civil service would be considered in granting the above-
mentioned material and social guarantees. In this connection, the author’s argument
about the loss of all the benefits earned and accrued during her public service as a
result of her dismissal is unfounded.
__________________
9 An employee’s refusal to continue working due to a change in the material conditions of
employment.
10 Article 13 (6) of the Law of the Republic of Belarus on civil service in Belarus.
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6.18 As to allegations under article 5 of the Convention, the State party states that its
labour legislation adheres to gender equality in labour relations. The Labour Code
prohibits discrimination in employment relations. Article 14 of the Labour Code
stipulates that discrimination, defined as limitation of labour rights or receipt of any
advantages based on sex, race, national or social origin, language, religious or
political beliefs, membership or non-membership in trade unions or other public
associations, property or employment status, age, place of residence, physical or
mental disabilities not preventing performance of the respective labour duties, or
other circumstances unrelated to business, is forbidden. Discriminatory terms in
collective agreements are invalid. Any distinctions, exceptions, preferences or
restrictions shall not be considered discrimination if: (a) based on the inherent
requirements of the job; or (b) necessitated by the need for special State care for
persons in need of increased social and legal protection (women, minors, persons with
disabilities, persons affected by the Chernobyl disaster, etc.).
6.19 Persons who consider that they have been discriminated in employment
relationships are entitled to apply to a court for the removal of discrimination. In
addition, this list of discriminatory circumstances is open: any conditions that are not
related to business qualities and are not conditioned by the specifics of an employee’s
job function or status may be considered discriminatory, which may be grounds for
holding the employer liable in accordance with the legislation of Belarus. Article 185
of the Labour Code stipulates that leave to care for a child up to the age of 3 is granted,
at the family’s discretion, to the working father or other relative or member of the
child’s family if the child’s mother goes to work (service), studies (when receiving
vocational, specialized secondary, higher or postgraduate full-time education), is in
full-time clinical residency training or is an individual entrepreneur, notary or lawyer.
Therefore, the law gives the family the right to decide which working parent will take
care of the child and therefore be on parental leave until the child reaches the age
of 3. The father on parental leave is afforded the same guarantees as the mother.
6.20 Monthly State social insurance allowance is granted and paid for the duration
of leave to care for a child up to the age of 3 in accordance with the procedure
established by law. Leave to care for a child up to the age of 3 is included in the length
of service, as well as in the length of work in the specialty, profession and position in
accordance with the legislation. However, being on parental leave is not compulsory.
A person on parental leave may go to work either full time or part time. To further
improve the legislation in terms of providing equal rights and opportunities in the
area of employment relations, including those related to the upbringing of children,
amendments to the Labour Code were introduced by the Law of the Republic of
Belarus on amendment of laws, which entered into force on 28 January 2020, in
particular: granting paternity leave on the birth of a child; granting a father
(stepfather) raising two or more children under the age of 14 (a child with disabilities
under the age of 18) the right to use his leave before the six months of employment
with the employer expire; granting a father (stepfather) bringing up a child with
disabilities under the age of 18 the right to plan a summer holiday or other convenient
time; extending the guarantees provided for working women mothers to working
single parents raising children; and establishing that women with children under the
age of 3 may be required to work overtime, on public holidays and public holidays,
on weekends and on business trips with their written consent.
6.21 The State party considers unfounded the argument that the failure to adopt
legislative and other measures (absence of a law on equality of men and women,
comprehensive anti-discrimination legislation) prohibiting any discrimination against
women led to a violation of the author’s labour rights on discriminatory grounds. The
State party policy is aimed at ensuring equal opportunities for all citizens, regardless
of sex and age, to exercise the right to employment and work. The Constitution
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guarantees citizens the right, without any discrimination, to equal protection of their
rights and legitimate interests.11 The right to equal protection of rights and legitimate
interests without discrimination is enshrined in the Civil Code of the Republic of
Belarus,12 the Code of Administrative Offences,13 the Code of Criminal Procedure14
and several other laws.
6.22 The State party also refers to article 3 (3) of the Criminal Code, stipulating that
persons who have committed crimes are equal before the law and are subject to
criminal liability regardless of sex, race, nationality, language, origin, property and
official status, place of residence, attitude towards religion, beliefs, membership in
public associations, and other circumstances. A similar norm is contained in part three
of article 4.2 of the Code on Administrative Offences. Article 190 of the Criminal
Code establishes liability for deliberate direct or indirect violations or restrictions of
rights and freedoms or the establishment of direct or indirect advantages for citizens
on the grounds of sex, race, ethnic origin, language, origin, wealth or official status,
place of residence, attitude to religion, beliefs, or membership of voluntary
associations, thereby causing substantial harm to the rights, freedoms and legitimate
interests of citizens.
6.23 Constitutional guarantees of citizens’ right to work and free choice of
profession, occupation and work, and the principle of equality in the exercise of these
rights are also enshrined in the labour legislation. Under article 14 (1) of the Labour
Code, discrimination, defined as limitation of labour rights or receipt of any
advantages based on sex, race, national or social origin, language, religious or
political beliefs, membership or non-membership in trade unions or other public
associations, property or employment status, age, place of residence, physical or
mental disabilities not preventing performance of the respective job duties, or other
circumstances unrelated to the specific functions of the job, is prohibited.
Discrimination is allowed neither in specific actions nor in provisions of legislation,
collective agreements or other local legal acts or employment contracts on any
employment relationship (recruitment, transfers, termination of the employment
contract, remuneration, conditions and protection of labour). Individuals who
consider that they have been discriminated against in employment relationships are
entitled to apply to a court to end discrimination. 15 A dispute arising from an
employment relationship may be initiated in court by an employee, a prosecutor, a
trade union defending the rights and legally protected interests of its members, or
other organizations and citizens in cases stipulated by the legislation of the State
party. Employees are exempt from paying court fees in individual labour disputes. 16
It is prohibited to refuse to conclude an employment contract or to reduce a woman’s
wages on grounds of pregnancy or having children under the age of 3, or for single
mothers with children under the age of 14 (with children with disabilities under the
age of 18).17 If an employer refuses to conclude an employment contract with these
categories of women, he or she must inform them of the reasons in writing. A refusal
to conclude an employment contract may be appealed in court.
6.24 The State party further notes that the Presidium of the Supreme Court adopted
Decision No. 7 of 5 December 2017 on the practice of application by the courts of
legislation regulating the labour of women and employees with family responsibilities
based on the generalization of court practice and discussion of issues relating to the
__________________
11 Article 22 of the Constitution.
12 Article 2 of the Constitution.
13 Article 2.12 of the Constitution.
14 Article 20 of the Constitution.
15 Pursuant to article 14 (4) of the Labour Code.
16 Pursuant to article 241 (4) of the Labour Code and article 257 (1).6.1 of the Tax Code.
17 Pursuant to article 268 (1) of the Labour Code.
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implementation of rules prohibiting discrimination in labour relations, as well as
compliance with labour guarantees for women and employees with family
responsibilities. The Presidium of the Supreme Court has instructed the courts to
thoroughly check in court each employee’s argument about discrimination by the
employer in the sphere of labour relations. Courts are advised to consider the full
range of rights and guarantees provided by labour legislation, as well as by the
employer’s local normative legal acts for women employees and other employees
with family obligations. Knowingly dismissing a person from work unlawfully is
punishable under article 199 of the Criminal Code.
6.25 The State party notes that it systematically implements practical measures aimed
at gradually eliminating historically established stereotypes in the distribution of
family roles in the care and upbringing of children. For example, women, who have
been more diverted from the labour market to family responsibilities, are provided
with employment promotion guarantees. The unemployment rate among women is
lower than among men and is gradually declining (according to a sample International
Labour Organization household survey conducted in May 2018, the unemployment
rate among women was 3.5 per cent (5.8 per cent among men) and in 2016 it was
4.2 per cent (7.5 per cent among men). In addition, activities to improve legislation
are aimed at increasing equality in employment and family relations. On that basis,
the State party ensures equal rights for men and women, the right to work as an
inalienable right of all people, the right to free choice of profession or type of work
and the guarantee of employment. In conclusion, the State party maintains that the
author’s claims of her rights being violated under articles 1 (a) and (c), 2 (a)–(d),
5 and 11 (1) of the Convention are unfounded.
Author’s comments on the State party’s observations on the merits
7.1 On 11 July 2020, the author submitted comments on the State party’s
observations on the merits.
7.2 According to the author, Decree No. 142 to which the State party refers has not
been accessible to and has not been made available for scrutiny by civil servants. The
Decree was not made available to the author even after her petition to the court.
Furthermore, the author claims that she suffered indirect discrimination, as the
adoption of the Decree had discriminatory consequences for her, notably her wrongful
dismissal while on maternity leave.
7.3 The author claims that the protection of women’s rights that have been violated,
as well as the investigation of complaints or information about their violation, were
neither within the competence nor the priority of the Belarusian Union for Women.
The author is also unaware of any actual cases of successful protection of women’s
rights and restoration of social justice achieved through the Belarusian Union for
Women. Moreover, the main priorities of the Union’s work are educational and
humanitarian in nature, which points to the prevailing stereotype about women as
“guardians of the home” as well as to the Union’s pro-State character, which excludes
the possibility of providing legal aid in cases of violation of individual rights by the
State.
7.4 The author did, however, acknowledge the initiative of the State party
authorities and acceded to the wish of the Belarusian Union for Women to look into
the situation. The author nevertheless considers that the meeting with the Chair of the
Belarusian Union for Women Navapolatsk city organization was ineffective and
pointless, as no further action was taken by the Union to protect the author ’s rights.
The information contained in the explanatory note that she had no claims against her
former employer is related to the abstract question of the Chair of the Belarusian
Union for Women Novopolotsk city organization: “What is the author trying to
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achieve with her complaint? No specific questions were asked about the author ’s
former employer, including whether she had a claim against the former employer.
Thus, the information that the author had no claim against her former employer
represents a loose interpretation of her words that she wants to get justice”.
7.5 With regard to the written explanation by the head of the Novopolotsk
enforcement department, the author’s former employer, about the absence of threats
and pressure, the author states that this written explanation led in turn to a
conversation with her new employer about her submission of a complaint to the
Committee. As the author’s new employer is also a public entity and is supervised by
her former employer, the Chief Department of Justice of the Vitebsk region, the author
reiterates that by submitting the complaint to the Committee, she has not committed
any infraction, yet used her right under article 61 of the Constitution to apply to an
international body for the protection of her rights. According to the author, it is not
clear who initiated the explanatory memorandum, whether the initiative came from
one person or whether a working group was set up to investigate the incident, and if
so, why no witnesses to the incident were interviewed, nor is it clear why the results
of the investigation were not brought to the author’s attention. The author claims that
neither her former employer nor the State party initiated or conducted a
comprehensive and impartial investigation of the facts stated by the author in her
communication.
7.6 The author submits that, despite the threats and pressure exerted by her former
employer and the information available to the her new employer regarding her
complaint before the Committee, she was offered a two-year extension of her
employment contract in June 2020. The author expresses her satisfaction with the
conditions created by her current employer and the existing relationship with her
superiors. She points out that the two-year extension period coincides with a provision
of domestic law 18 that enshrines the mandatory nature of the extension of the
employment contract with the consent of the child’s mother, for a period not ending
until the child reaches the age of 5. Given that the author’s child will be 5 years of
age in two years’ time, and that her dismissal now would be impossible and unlawful,
the author nevertheless remains concerned that reprisals for filing a complaint with
the Committee could be carried out, which could lead to a loss of employment after
two years.
7.7 As to her civil service class and benefits, the author considers that, although in
theory the State party arguments are valid, further public service in her hometown is
unlikely owing to the hostility of the State party, which automatically deprives her of
the possibility to continue her career as a public official and to enjoy the benefits
mentioned by the State party. As to the information about the highest grade assigned
to the author, contested by the State party as untrue, she regrets the error and
apologizes for her unintentional misrepresentation to the Committee.
7.8 Concerning the violation of her rights under article 11 (1) (a) and (c) and 2 (a)
of the Convention, the author argues that the State party’s position is unfounded and
that her dismissal is discriminatory. In its notification of 30 November 2015, the State
party stated that the author’s contract of 1 January 2014 for a period of one year,
renewable until 31 December 2015, would not be renewed thereafter. As a result, upon
expiry of the said contract, the employment relationship was terminated owing to the
expiry of the fixed-term employment contract, on the basis of article 35 (2) of the
Labour Code. The said notice did not contain a motive for the non-renewal of the
author’s contract. Consequently, it cannot be an indication of the author’s inferior
performance compared with other bailiffs.
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18 Paragraph 2 of Decree No. 180 of the President of the Republic of Belarus of 12 April 2000.
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7.9 The author explains that, if her employer had indeed intended to dismiss her
owing to her poor work performance, the basis for such decision would be article 42,
paragraph 3, of the Labour Code: “non-conformity of an employee with the position
or work performed”. Article 42 (3) of the Labour Code pertains to “lack of conformity
of the employee with the position or work performed due to insufficient qualifications
preventing the employee from continuing in the job in question”. An employee’s
unfitness for the job is determined by objective evidence. It must be determined based
on the specific facts confirming that the employee is not properly performing the work
under the employment contract. The author emphasizes that, in this case, the
experience and length of service is irrelevant because the qualification, according to
article 1 of the Labour Code, is “the level of general and special training of the
employee, as confirmed by the types of documents (certificate, diploma, etc.)
established by law”. Thus, the author claims that the State party’s argument about her
record of seniority, professionalism and experience being inferior to that of other
bailiffs in the department was subjective, as the State party did not provide evidence
to the contrary and because the above criteria were never brought to the attention of
the author. There was no comparison of data on the seniority, professionalism or
experience of the work of other bailiffs whose positions had been retained with the
corresponding data of the author whose position had been abolished.
7.10 The author also states that most bailiff positions in the State party are held by
women19 and the bailiffs in her former employer’s team were only women, so in fact
it was only possible to dismiss women. According to her, this suggests a tendency
towards gender segregation in enforcement proceedings. Thus, the author underlines
that she was not the only woman civil servant. She argues that the State party failed
to substantiate that her professional performance was inferior to that of other
employees in the department and failed to respond adequately to arguments of
discrimination before the courts.
7.11 As to her financial situation, the author maintains that it changed during her
maternity leave, as after her dismissal she was forced to pay the residual value of the
work uniform.20 The author reiterates that her dismissal violated her right to work and
constituted indirect discrimination based on being on maternity leave, contrary to
articles 11 (1) (a) and (c) and 2 (a) of the Convention.
7.12 The author submits that the State party merely enumerates the rules contained
in the national legislation without reference to any implementation of law. The State
party pursues the tactic of ignoring her arguments, already chosen when she was
defending her rights at the national level.
7.13 The author maintains that the State party labour law gives the mother the leading
role in caring for a newborn child, referring to articles contained in chapter 19 of the
Labour Code, on peculiarities of regulating the work of women and workers with
family responsibilities. The provisions envisaged to facilitate the employment of
parents are mainly aimed at women, regardless of their marital status. Article 271
stipulates guarantees for fathers, single parents, other relatives, family members of
the child and guardians (i.e. custodians). The wording of the provision and the
sequence of family members listed also provides that the hierarchy on “access” to
childcare starts with the mother, followed by the stepmother, if the leave is not granted
to the working father, another relative, and a family member of the child, and is also
transferred to the same persons in cases where the mother is unable to care for the
child owing to a group I disability or illness. Article 268 (1) prohibits the refusal to
__________________
19 Confirmed by publicly available media sources form Gomel region, Brest region and Minsk
district of Minsk region.
20 Amounting to 282.93 Belarusian roubles (equivalent of 122.44 euros at the time of payment)
which was 101 per cent of her monthly allowance for the care of a child under the age of 3.
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conclude an employment contract and the reduction of wages on grounds relating to
single mothers with children under the age of 14 (a child with disabilities under the
age of 18). The law in force at the time of the author’s complaint did not include
guarantees for single fathers or other persons.21 As to article 185 of the Labour Code,
although the right of other family members to take such leave is granted, the structure
and order of the text suggests that this article is focused primarily on mothers and
secondarily on other family members. The reference to the parental role in the Labour
Code was strengthened with the adoption of the Labour Code amendments that came
into force on 28 January 2020. It is clear from the analysis of the provisions of the
Labour Code that the upbringing of children and the running of the household are
perceived as women’s responsibilities. Hence the interpretation of national legislation
in the spirit of the stereotype of women as “keepers of the home” was already inherent
in the labour law. According to the author, in order to avoid stereotyping, the national
courts have to shift the burden of proof and apply the interpretation and analysis of
article 14 of the Labour Code, which contains a prohibition of discrimination on the
basis of sex. The author reiterates her claim that her dismissal was based on this
stereotype.
7.14 Concerning the violation of her rights under article 2 (a)–(d) of the Convention,
the author affirms that the State party lacks any comprehensive anti-discrimination
law and that there are shortcomings in the practical implementation of the principle
of equality of men and women enshrined in the national legislation. The author recalls
that the lack of adequate legislation to prohibit all types of discrimination has been
highlighted by five United Nations human rights treaty bodies, including the
Committee,22 as well as the Special Rapporteur on the situation of human rights in
Belarus.23 Moreover, in 2016 the Committee noted with concern, in its concluding
observations on the eighth periodic report of Belarus, the absence of any court
decisions referring to the provisions of the Convention.24 The author also refers to a
sociological survey conducted at the end of 2018,25 according to which the percentage
of applications to the courts in cases of gender discrimination at work sphere is very
low. Only 15.3 per cent of respondents were prepared to assert their rights in response
to gender discrimination at work, of whom 16.5 per cent were prepared to defend their
rights in court. One of the reasons for the lack of discrimination disputes in court is
the respondents’ belief in the non-recognition of discrimination per se by the courts,
but also in the inability to prove discrimination and the realization that, even in the
event of a favourable court decision, the employment relationship would be of a
hostile nature.
7.15 The author maintains that the adoption by the Presidium of the Supreme Court
of Decision No. 7 did not contribute to establishing effective protection for her against
an act of discrimination. She filed supervisory review appeals before the Regional
__________________
21 The change was made in July 2019 by correcting “single mother” to “single parent”.
22 Concluding observations of the Committee on Economic, Social and Cultural Rights on the
combined fourth to sixth periodic reports of Belarus (E/C.12/BLR/CO/4-6, para. 8); concluding
observations of the Committee on the Elimination of Discrimination against Women on the
eighth periodic report of Belarus (CEDAW/C/BLR/CO/8, paras. 8 and 9); concluding
observations of the Committee on the Elimination of Racial Discrimination on the combined
twentieth to twenty-third periodic reports of Belarus (CERD/C/BLR/CO/20-23, paras. 10
and 11); concluding observations of the Human Rights Committee on the fifth periodic report of
Belarus (CCPR/C/BLR/CO/5, paras. 15 and 16); and concluding observations of the Committee
on the Rights of the Child on the combined fifth and sixth periodic reports of Belarus
(CRC/C/BLR/CO/5-6, para. 15).
23 Report of the Special Rapporteur on the situation of human rights in Belarus (A/HRC/41/52,
para. 60).
24 Concluding observations on the eighth periodic report of Belarus (CEDAW/C/BLR/CO/8, para. 10).
25 Study on the situation of gender discrimination on the labour market and in recruitment, p. 19.
Available at www.genderperspectives.by/images/PolNePotolok/_----_-_2019.pdf.
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Court of Vitebsk (21 March 2018) and the Supreme Court (24 June 2018) following
the adoption of Decision No. 7. Despite the author’s repeated references to the
prohibition of discrimination contained in domestic law and in the Convention, the
courts failed to apply the prohibition. The Supreme Court was the only court of which
the response to the author’s complaint contained a reference to the concept of
discrimination in employment relations. The Supreme Court concluded that “the
[lower] court reasonably found the arguments of discrimination in employment
relations to be unfounded, as the employer did not deprive you [the author] of the
right to continued employment, you [the author] were offered the position of a
reference officer and the salary corresponding to the staff list”. The Supreme Court
did not examine the discrimination arguments on the merits, it did not perform a
discrimination test, and its conclusion is not supported by references to either the
provisions of Belarusian law or the Convention. Consequently, the author affirms that
the domestic courts failed to provide her with an effective defence against an act of
discrimination.
7.16 The author points out that the Supreme Court notes in Decision No. 7 the link
between the identified errors in the examination of discrimination claims by
employees against their employers with insufficient knowledge by individual judges
of the legislation governing the work of women and workers with family
responsibilities and the judicial practice in this area. In the light of the above, the
Supreme Court, in paragraph 5 of Decision No. 7, instructed provincial (i.e. Minsk
City) courts to periodically review the practice of the courts in considering disputes
concerning the protection of women’s labour rights and to take steps to ensure the
uniform and correct application of the law. Nevertheless, as stated by the Supreme
Court in its reply of 29 June 2020 to an appeal by the Centre for the Advancement of
Women, there is no statistical record of cases of discrimination in employment
relations heard by the courts.
Issues and proceedings before the Committee
Consideration of admissibility
8.1 In accordance with rule 64 of its rules of procedure, the Committee must decide
whether the communication is admissible under the Optional Protocol.
8.2 In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is
satisfied that the matter has not already been and is not being examined under another
procedure of international investigation or settlement.
8.3 The Committee notes the State party’s argument that the communication ought
to be declared inadmissible under article 4 (1) of the Optional Protocol for
non-exhaustion of domestic remedies, because the author has not filed a complaint
against the courts’ decisions with a prosecutor’s office. The Committee recalls that,
under article 4 (1) of the Optional Protocol, 26 it is precluded from considering a
communication unless it has ascertained that all available domestic remedies have
been exhausted unless the application of such remedies is unreasonably prolonged or
unlikely to bring effective relief. In that connection, the Committee recalls that a
petition for supervisory review submitted to a prosecutor’s office, dependent on the
discretionary power of the prosecutor, requesting a review of court decisions that have
taken effect, constitutes an extraordinary remedy and thus does not constitute a
remedy that must be exhausted for the purposes of article 4 (1) of the Optional
Protocol. The Committee therefore considers that it is not precluded by the
__________________
26 See, mutatis mutandis, Malei v. Belarus (CCPR/C/129/D/2404/2014 para. 8.4), V.P. v. Belarus
(CEDAW/C/79/D/131/2018, para. 6.3), Grygory Gryk v. Belarus (CCPR/C/136/D/2961/2017,
para. 6.3); Andrei Tolchin v. Belarus (CCPR/C/135/D/3241/2018, para. 6.3); and Natalya
Shchukina v. Belarus (CCPR/C/134/D/3242/2018, para. 6.3).
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requirements of article 4 (1) of the Optional Protocol from considering the present
communication.
8.4 Having found no impediment to the admissibility of the communication, the
Committee declares the communication admissible and proceeds to its consideration
of the merits.
Consideration of the merits
9.1 The Committee has considered the present communication in the light of all the
information made available to it by the author and by the State party, as provided in
article 7 (1) of the Optional Protocol.
9.2 The Committee notes the State party contested the author’s claims that her
dismissal was based on discrimination on the grounds of sex. It notes that the author ’s
one-year contract was extended twice – until 31 December 2015 and, after she gave
birth on 21 April 2016, until 31 December 2016. The Committee also notes that the
author’s maternity leave was approved for the time until the child reaches the age of 3.
9.3 The Committee further takes note of the State party’s arguments that the
reorganization at the author’s workplace led to another job offer by her employer, and
that her refusal to accept the proposed alternative to her position as bailiff led to her
dismissal. In particular, the Committee notes the State party’s clarifications that,
while in August 2017 there were eight bailiff posts in the staffing table of the author ’s
division, as of 1 September 2017 the new staffing table of the division includes four
bailiff posts and four referent/reference officer posts; all positions of bailiffs of the
division were held by women; and on 22 August 2017, the author was warned about
the abolition of her position as a bailiff and was offered another job as a reference
officer in the Novopolotsk enforcement department that she could have taken up
immediately as of 1 September 2017. The Committee further notes that, according to
the State party’s legislation,27 if the worker/employee refuses to take the new position
offered by the employer, such refusal could be a valid ground for a dismissal. It also
notes that the State party, in line with its legislation, has offered the author a position
as a civil servant at the executive body, which she has accepted.
9.4 The Committee notes the author’s claims of violations of her rights under
articles 2 (a)–(d), 5 (a) and (b), 11 (1) (a) and (c), and 11 (2) (a) in conjunction with
article 1 of the Convention. The Committee notes that the author complains of
discrimination by the State party due to the failure of its authorities to: identify
discrimination in her dismissal while on maternity leave and protect her from
discrimination because the grounds on which she was dismissed mostly affect women;
provide her with an effective remedy and compensation for the damages suffered;
revise the legislation leading to her dismissal in accordance with the principles of the
Convention; and consider the best interests of the child, whom she was breastfeeding
at the time of dismissal.
9.5 The Committee considers that direct discrimination against women constitutes
differential treatment explicitly based on sex and on gender differences. Indirect
discrimination against women occurs when a law, policy, programme or practice
appears to be neutral insofar as it relates to men and women, but has a discriminatory
effect in practice on women because pre-existing inequalities are not addressed by the
apparently neutral measure. The Committee considers that, in order to substantiate a
claim of indirect discrimination, it is necessary to establish that a law, policy,
programme or practice has a discriminatory effect on women as a group.
__________________
27 Labour Code, arts. 35 (5) and 36.
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9.6 The Committee notes the author’s claim that the alleged failure of the State
party’s authorities to provide protection to the her in the labour dispute meant that she
lost her job, and that she did not obtain a remedy despite multiple complaints and
petitions addressed to the courts. The Committee notes that it does not result clearly
from the communication, however, in what way the author, as a woman, was affected
disproportionately or differently from all other bailiffs who were women. In this
regard, the Committee notes that an employer has the right to change the essential
conditions of work for justified industrial, organizational, or economic reasons, while,
during the optimization of State bodies, additional guarantees for employees whose
positions are subject to optimization are to be provided.
9.7 The Committee also notes that the author was warned about the abolition of her
position as a bailiff and was therefore offered another job as a reference officer in the
judicial enforcement department without interruption in employment. The Committee
observes that the termination of the employment relationship with the author (an
employee’s refusal to continue working due to a change in the material conditions of
employment) was not related to her being on maternity leave and was not a dismissal
on the employer’s initiative.
9.8 In the light of the foregoing, and in the absence of any further relevant
information on file, while not underestimating the author’s claim that she was
subjected to indirect discrimination on the grounds of sex, the Committee cannot
establish the discriminatory nature of the facts alleged in the communication.
10. Therefore, acting under article 7 (3) of the Optional Protocol, the Committee
concludes that the author’s dismissal did not constitute an indirect discrimination in
violation of articles 2 (a)–(d), 5 (a) and (b), 11 (1) (a) and (c), and 11 (2) (a), in
conjunction with article 1 of the Convention.