Hungary’s Constitutional Court Decides Part of the Labour Code is Unconstitutional on Privacy Grounds, Introduces the ‘Right to Lie’

The Hungarian Constitutional Court¹ recently issued a detailed decision (Decision No. 17/2014 (V. 30.) AB) on the right of pregnant women and women undergoing medical fertilization treatments to hide their pregnancies/fertilization treatments. The decision was published on May 27, 2014².

The breakthrough ruling introduces the “right to lie” in Hungary, a right that is already recognized in some other EU member states.

In its decision, the Constitutional Court expressed objections on privacy grounds and removed a provision from Act No. I of 2012 on the Labour Code³, with retroactive effect.

Background

The Fundamental Law of Hungary⁴ protects privacy and family life. According to Article II of the Fundamental Law, human dignity shall be inviolable and every human being shall have the right to life and human dignity, and embryonic and fetal life, and shall be subject to protection from the moment of conception. Further, according to Article VI of the Fundamental Law, every person shall have the right to the protection of his or her private and family life, home, relations and good reputation, and every person shall have the right to the protection of his or her personal data, and to access and disseminate data of public interest.

Furthermore, in Hungary, pregnant women are protected by law from termination of employment (during pregnancy and until the third anniversary of the child’s birth or when they concluded their nursing period without working). According to some court judgments⁵, this protection is “objective” and consequently applies to a woman even if she was not aware of her pregnancy; however, such judgments are rare.

The consistent court practice⁶ relating to the interpretation of the above provision⁷ has always been controversial, with most judges arguing that the employee must inform the employer at the time of the termination of employment (at the latest) in order to benefit from the protection. Moreover, one judgment even held that, if the employee hides her pregnancy from her employer, she is not protected from termination⁸, since she is acting in bad faith.

In order to unify court practice in this regard and to protect employers’ interests, the Hungarian Parliament incorporated a provision into the Labour Code providing that the protection against termination applies only if the employee informs the employer about her pregnancy/medical fertilization. According to the original Section 65 (5) of the Labour Code, pregnant women and women undergoing fertilization treatments are subject to protection against termination, provided that they properly inform their employers about the fact of pregnancy/fertilization treatment.

The Commissioner for Fundamental Rights (“Commissioner”)⁹ subsequently submitted to the Constitutional Court a petition for ex-post normative control, asking for a constitutional review of Section 65 (5) of the Labour Code¹⁰.

According to the Commissioner’s opinion, formed on the basis of reviewing the studies dealing with the codification of the new Labour Code as well as the Hungarian and the European practice on fundamental rights, there are serious justifiable constitutional concerns regarding the challenged regulation on protection against termination. As pointed out by the petitioner, the provision requiring an employee to disclose her pregnancy cannot be complied with if the employee is not aware of the pregnancy. He maintained that those who are not aware of their medical status should also have protection against termination. He referred to the Fundamental Law, which ensures the right to privacy and private family life. The Commissioner held that the recent changes in the provisions of the Fundamental Law in the field of privacy do not imply the disregarding of the Constitutional Court’s judicial practice — based also on the practice of the European Court of Human Rights — related to the right to private life. Moreover, the Commissioner made a reference to a 2004 decision¹¹ by the Curia, Hungary’s highest judicial authority, arguing that it is against the principles of law to require an employee to disclose her pregnancy to her employer or even to give false information.

Decision of the Constitutional Court

The Constitutional Court accepted the claim of the Commissioner and removed Section 65 (5) from the Labour Code, with retroactive effect¹². In its decision, the Constitutional Court gave a detailed analysis of the concept of privacy, and introduced the “right to lie” in order to protect human dignity.

In the decision, the Constitutional Court provided detailed reasoning relating to the practice of the European Court of Justice protecting the rights of pregnant women and the requirements for equal treatment¹³. However, the Constitutional Court explained that it is not only a question of equal opportunity but also an issue relating to privacy protection. In its view, the Constitutional Court must examine (within the frame of the petition of the Commissioner) whether making the protection against dismissal defined in Section 65 (3) a) and e) conditional upon informing the employer about a pregnancy — before receiving notice of dismissal — by the employee infringes the right to privacy or private family life. During this scrutiny by the Constitutional Court, the starting point was the determination of the scope of protection of the referenced fundamental rights.

The Constitutional Court interpreted the right to privacy and its relation to the right to human dignity in a previous decision, No. 32/2013 (XI. 22.)¹⁴. It came to the conclusion that Article VI (1) of the Fundamental Law — contrary to Article 59 § (1) of the previous Constitution — provides comprehensive protection of privacy and covers the private and family life, home, communications and good reputation of the private individual. As regards the substance of privacy, it continued to deem sustainable the definition — representing the overall essence of the notion of private life — reached by the Constitutional Court in its earlier practice, according to which the essential conceptual element of privacy is that others may not interfere or have access thereto against the will of the person concerned¹⁵. The Constitutional Court highlighted that there is a particularly close relationship between the right to privacy ensured by Article VI (1) of the Fundamental Law and the right to human dignity guaranteed by Article II of the Fundamental Law.

In the Constitutional Court’s interpretation, Article II of the Fundamental Law provides a basis for the protection of the “untouchable area of the formation of privacy”, which is completely excluded from any kind of state intervention, since it is the basis for human dignity. Nonetheless, according to the Fundamental Law, the protection of privacy is not restricted only to the inner sphere or intimacy protected also by Article II of the Fundamental Law, but also covers privacy in a wider sense (communication) and the territorial sphere, in which the private and family life unfolds (home). Beyond this, the image created about one’s life enjoys individual protection as well (right to good reputation)¹⁶.

Article XVII (3) of the Fundamental Law stipulates the protection of rights ensured in Articles II and VI (1) of the Fundamental Law in relation to employment: “Every employee has the right to working conditions which respect his or her health, safety and dignity”.

Section 9 § (1) of the Labour Code stipulates the general requirement of the protection of personality rights. Personality rights are named within the Civil Code, and thus the right to privacy and the right to the protection of personal data as well (Civil Code 2:43 § b), e)). The protection of personality rights in labour law — according to the reasoning of the Labour Code — is of high importance, primarily due to the imbalanced nature of the employment relationship. According to Section 10 § (1) of the Labour Code, an employee may be requested to make a statement or to disclose certain information only if it does not violate his or her rights relating to personality, and if deemed necessary for the conclusion, fulfilment or termination of the employment relationship.

With a view to the fact that the circumstances defined in Section 65 § (3) a) and e) of the Labour Code are regarded as personal data, the Constitutional Court referred to its previous practice regarding the relationship of the right to privacy and the right to protect personal data ensured by Section VI (2) of the Fundamental Law. Since 1991, the Constitutional Court had not construed the right to protect personal data as a traditional protective right, but, taking into account its active side as well, interpreted it as a right of informational self-determination¹⁷.

The Constitutional Court highlighted that the right of informational self-determination is closely linked to the right to privacy, as it contains the right to decide when and within what limits the individual will reveal data related to his or her person. The restriction of the right of informational self-determination — contrary to the right to privacy — is not aligned primarily to the character of the data, but rather to its use. The right of informational self-determination comprehensively protects the personal data of the private individual, regardless of how the data controller came into possession of such data.

Interpretations of the Term ‘Private Life’ in Hungary by Other Authorities

The definition of private life is a broad concept with no single, clear definition in Hungary. Different interpretations are available in decisions adopted by criminal or civil courts.

However, in general, the concept is broader than that of the right to privacy, and concerns a sphere within which everyone can freely pursue the development and fulfillment of his/her personality.

In the interpretation of the Constitutional Court, the right to private life is not only broader than the right to privacy, but is also covered by informational self-determination, which requires active (proactive) conduct from the affected individual.

The previous Data Protection Commissioner¹⁸ analyzed in detail the employee’s rights to protect certain information from the employer, and pointed out in several opinions and statements that the employee may not be forced to provide information about his/her private life to the employer unless the employer’s question affects a material part of the employment relationship. For example, pregnant women can be requested to provide information about their pregnancy only if the information is relevant to their work schedules or to dangers involved in fulfilling certain positions. In any other case, it falls under the right of the woman’s informational self-determination whether to provide the information to the employer or not.

Comment

Under Hungarian law, this decision of the Constitutional Court may serve as a basis for the reopening of closed litigation in which pregnant women were affected.

The decision also shows that the interpretation of privacy law remains an active area for the Constitutional Court, as it further refines its interpretations of the notions of privacy, private life, and personal data protection.

Andrea Klára Soós is an Attorney at BWSP Hungary. She may be contacted at andrea.soos@sooslaw.hu.