Non-discrimination also applies to management board members

A member of a company management board may be regarded as an employee within the meaning of Council Directive 92/85 EEC of 19 October 1992. Removal of a pregnant woman from the management board may thus be successfully challenged as discriminatory.

One of the recent judgments of the Court of Justice of the European Union of 11 November 2010, based on the recall of a pregnant woman from the management board of a limited liability company (Dita Danosa v. LKB Lizings SIA), sheds new light on the issue of protection against discrimination.

In accordance with its terms, a member of a company management board must be regarded as an employee within the meaning of Council Directive 92/85 EEC of 19 October 1992 (the introduction of measures to encourage improvements in workplace safety and health at work of pregnant workers who have recently given birth or are breastfeeding) if he/she provided work for a certain period, for a specified person and under that person’s direction, and in return for which he/she receives remuneration. Determining whether the management board member is an employee for the needs of the directive should in each case be based on the above objective criteria and taking into account the facts, regardless of whether such person is an employee or not in the light of domestic law, and irrespective of whether the management board member has any obligating civil law or employment relationship with the company.

Recognition of a company management board member as an employee within the meaning of the directive entails significant limitations on the opportunities to remove him/her from position. Such a recall may be successfully challenged if it is largely justified by reasons of a discriminatory nature (i.e. gender, pregnancy, maternity, etc.). It is immaterial in this regard that national legislation allows for free recall of management board members at any time, without stating the reasons – this is because such right does not operate in a scope that would be discriminatory. The Court also signalled that in other cases where we are not dealing with a management board member who is an employee, his/her recall from post on discriminatory grounds will violate the provisions of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, as amended by Directive of the European Parliament and Council 2002/73/EC of 23 September 2002.