Standing up for rights after discrimination based on nationality in the EU

Your passport is the wrong color

All work was limited to joining the corporate chat for a couple of minutes, after which access was suddenly cut off. Igor didn’t even have time to read the message in his work email about his dismissal: it had already been liquidated. The scheduled half hour of the onboarding call with the manager was spent announcing the termination of the contract, “since the company employs employees who have personally suffered from the current military conflict.” It turned out that they staged a real riot, inviting the employer to choose – either Igor or them…

Here I remember Prostokvashino: “I choose you, I’ve known you for a long time, but this is the first time I’ve seen this cat!”

On the call, Igor was indignant, saying that this was obvious discrimination. “Well, yes,” the manager threw up his hands. Here Igor openly regretted that he did not record the call – he attributed the sudden problem with access to a temporary failure (hardly anyone expects such a reception on the first day of work…).

Here Comrade Saakhov comes to mind: “I didn’t do anything, I just walked in!”

After an extremely strange call with the manager, Igor received a letter from the head of the company. It said that the CEO, of course, is against collective responsibility, but he employs people on the other side of the conflict, and they personally suffered, so excuse and forgive.

Step one: don’t yell and ask those who know

Igor’s contract stated that the first month of work was considered a probationary period, and therefore the parties could easily terminate their obligations. Remembering the manager’s answer, “yes, this is discrimination,” Igor asked the company for confirmation that the dismissal was not caused by his actions or inactions. They sent him a document terminating the freelance contract “according to an internal decision of the company” and wished him good luck.

Igor decided that taking the case into public space would not help him in any way, but would only worsen the situation. But consultation with trusted people could well resolve his doubts. To begin with, he turned to his acquaintances from abroad, with whom he maintained good relations. In addition to therapeutic sympathy, he was given valuable advice to contact the competent authorities at the place of registration of the company to analyze his case.

Step two: contact the place of registration of the company

Separately, I would like to note that Igor, even at the start, decided not to mention the name of the company anywhere until he found out the exact legal status of what happened. (From my point of view, this is the right decision – valuable opinions of “armchair experts” would help create a scandal, but not qualify the situation legally. Again, the image of a brawler is unlikely to help a person with further employment, especially in a narrow field…)

Igor went looking for a local representative office on issues of equal treatment of employees (equality), and he started his search from the website EQUINET – the office of the Ombudsman for Equal Relations in the desired state quickly appeared there. You could simply report the fact of discrimination for statistics or request advice. Igor chose the latter so that it would be explained to him whether his dismissal was discriminatory.

Step three: response from an EQUINET member body

Within ten days, Igor received a response from the EQUINET authority by mail (he did not indicate a telephone number). He was asked additional questions, confirmed that his employer had violated the law, and was assured that the violation extended to freelance contracts and that it was prohibited to fire him because of his nationality, even during the probationary period. In addition, it was explained to him that he had the right to either have his job reinstated through the courts or seek compensation for unfair treatment.

To be reinstated at work, action was required immediately (2 weeks were allotted for this), but it was possible to request compensation within six months. Igor decided that working in a hostile environment was more expensive for himself, and decided to first ask how much money we were talking about according to the law.

Step four: find out the price of the issue and write a letter to the employer

A representative of the ombudsman's office responded that the law of this state does not provide for the exact amount of compensation. However, they usually recommend demanding from the employer the lost wages for six months (!) and additional money for the insult suffered. The employer, however, can refer to the law and offer a smaller amount. The final and obligatory amount to be paid can only be determined by the court, but usually in such cases everything possible is done for a pre-trial settlement, and the employee and the employer jointly determine the price of the issue.

Having calculated the amount of compensation together with a lawyer, Igor decided that he would still try to get it (he did not lose anything financially – the legislation of the country where his employer was registered provided for free assistance from the ombudsman’s office). It was explained to him that first of all he should write to the employer directly and request the amount of compensation himself (this is the official procedure for pre-trial settlement – the ombudsman's office intervenes only when a direct request is ignored). Igor did just that, writing to his employer with reference to the law.

Igor's error: the letter citing the law was This is already Igor’s second letter to his employer after his dismissal. Igor immediately responded to the manager’s letter with an apology, which should not have been done. You should answer only after consulting with a lawyer – otherwise, your answer may be used against you in order to reject the claim or reduce the amount of compensation. Igor was very lucky that this did not happen.

Step five: request to the employer from the EQUINET authority

Both letters from Igor were ignored by the former company. Only then did he provide the ombudsman's office lawyer with information about his former employer, including the name of the company, correspondence and official documents (contract and notice of termination). The lawyer asked Igor to fill out a personal data processing form and drew up an official appeal to the company where the act of discrimination took place.

It was a three-page document with a brief description of the situation and a list of all the articles of equal treatment legislation violated by the employer, as well as the inadmissibility of applying collective liability to an individual and the justification for the requested compensation.

Step six: response from the employer's lawyer and additional clarification

In response to the official request, a letter was received from the employer’s lawyer, to whom the latter had entrusted the case. The letter said that Igor’s former employer in Russia collaborated with government agencies, and this allegedly could create risks for clients of the failed employer in the EU if Igor started working. All these arguments were used for the sole purpose of reducing the amount of compensation. Igor was offered only 20% of the amount.

The lawyer from the ombudsman's office asked Igor a number of questions, noting that the arguments of the second side were very strange, but something needed to be answered. Igor presented evidence that he never misled the employer about previous places of employment, and also attached links to open information about his former employer and profiles of ex-colleagues who were not prevented from getting a job in the FAANG by their “connections with Russia.”

However, it was clear that the entire amount would not be possible in the pre-trial settlement process (the law does not provide a specific calculation formula for compensation). Igor agreed with the lawyer that if he managed to get at least 40-45% of the original amount from the employer, he would go to the settlement.

Step seven: settlement agreement and receipt of money

Armed with Igor's arguments and references, the lawyer from the ombudsman's office asked for even a little more – 60%, making it clear that otherwise court hearings would begin. The employer accepted these conditions, agreeing to pay 60% of the original amount, which is equivalent to paying Igor for freelancing services for six months. Through the mediation of lawyers on both sides, Igor and the employer signed an agreement almost 6 months after the incident itself.

All costs for the cross-border transfer were borne by the employer. He was also obliged to indicate compensation for personal damage to Igor as the purpose of payment. According to the settlement agreement, the employer was obliged to pay a penalty for late dispatch of funds.

Igor received his money thanks to good logic and decent English, without spending any personal funds and without ever leaving the country.

Afterword

Discrimination based on nationality is extremely unpleasant. In today's turbulent world, we have to face it more often than ever before. In most civilized countries, discrimination is illegal, but this does not mean that it does not occur there. If you think you have encountered one, gather evidence and seek legal advice. It may very well be that you have the right to more than just sympathy.

PS Igor, thanks for the clarifications and additions to the draft of this article. I would be grateful if you could help me respond to comments.