Suchergebnisse

The purpose of this research is to study contentious practices before the Courts of Appeal in order to measure the reality of discrimination in employment relationships and possible legal developments. In this context, attention should be paid to the circumstances, events, actions or behaviour that will lead to legal action. This study will also help to understand how the right to discrimination escaped by second-level judges. What, according to the Courts of Appeal, characterises discrimination? What sources are mobilised? What is the standard required to consider that the evidence produced by the employee is sufficient to presume the existence of discrimination? What are the justifications put forward by the employer? Particular attention must also be paid to the question of compensation, in particular the assessment of damage in the event of unlawful dismissal. The search method consists of questioning databases, in particular JURICA, to gather a sufficient number of decisions. More specifically, the study is based on a body of 1578 judgments between 2006 and 2013. A number of lessons can be drawn from this research. From a statistical point of view, it appears that half of the decisions recognise the existence of discrimination and that it relates mainly to trade union activity, gender (sex), health status and age. At the stage of legal action, the employee tends to multiply the possible grounds for discrimination in order to obtain satisfaction. Discrimination is presumed if specific elements are invoked, the judge does not confine itself to vague grounds. Since the presumption of discrimination is recognised by the court, it is very difficult for the employer to call that discrimination into question by objective factors. In summary, the mechanism for allocating the burden of proof is properly controlled. On the other hand, grey areas remain. There is some confusion in the handling of concepts (discrimination, equal treatment and harassment), leading to borderline problems. It is also very difficult to ...