Zakharova v. Russia

In the present case, the European Court of Human Rights (ECtHR) found that the applicants had been discriminated against on the grounds of trade union membership, violating Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) taken together with Article 11 (freedom of assembly and association).

The applicants worked at a municipal educational institution and were elected members of the Primary Trade Union active at the institution. As a result of a conflict between the District and the Regional Trade Unions of which the Primary Trade Union formed part, it was decided to liquidate the District Trade Union.
As a result of this decision, an Independent Trade Union was created at the institution, of which the applicants became elected members. The Independent Trade Union joined the All-Russia Trade Unions’ Association.

Following these events and the choice to join the All-Russia Trade Unions’ Association, the applicants were allegedly subjected to harassment and discriminatory practices by their employer on account of their trade union activity. On three occasions the employer took decisions to dismiss the applicants owing to an alleged staff reduction. Contrary to the requirements of the domestic law the employer did not seek prior consent to the dismissals by the applicants’ trade union. The first two dismissals were annulled by the public prosecutor following the applicants’ complaints.

In civil proceedings brought by the applicants, a town court found the third dismissal to have been unlawful because in breach of the applicable procedure as the applicants’ independent trade union had not been consulted on account of their dismissal. The court further held that “the actions [by the employer] against [the applicants] had been discriminatory, including on the grounds of their membership of a public association.” The unlawfulness of the dismissal was upheld by a regional court which however did not confirm the finding that the actions had been discriminatory because of a lack of evidence in this respect. [Para. 20].
On the basis of the above, the applicants contended that their discrimination complaints had been well founded and, therefore, they had fully satisfied the burden of proof.

The ECtHR held, in line with the position of the European Committee of Social Rights of the Council of Europe and the International Labour Organisation, that once the applicants had demonstrated a prima facie case of discrimination, the burden of proof was to be shifted to the respondent, and the employer, usually having control over relevant evidence, had to demonstrate the existence of legitimate grounds for the applicants’ dismissal. [Para. 43].

The ECtHR concluded that the State failed to fulfil its positive obligations to ensure effective and clear judicial protection against discrimination on the grounds of trade union membership and that there has been a violation of Article 14 of the ECHR taken together with Article 11. [Para. 48].