It is key from a term of comparison, considering that the right to equality is configured as a right-relational.
03/09/2024 To resolve cases of acts of employment discrimination is fundamental to manage a term of comparison from which we can perform a comparison between one person and another. The whole time that the notion of equality assumes a relationship between the subjects that make up the society, which cannot be affirmed or denied, on the basis of an analysis that considers the individual in isolation.
This is the main trend of case law that shows the sentence corresponding to the Cassation Labour N° 13843-2022 Piura, issued by the Second board of the Constitutional Right and Social Transient of the Supreme Court of Justice, which states founded the appeal within a process of approval of remuneration and other.
In this way, the hall of supreme delineates a pattern of jurisprudence to resolve employment discrimination cases such as those relating to the differences rewarding.
Foundation
In keeping with paragraph 2 of article 2 of the Constitution and the legal basis 20 of the judgment of the Constitutional Court (TC) relapse in File N° 00045-2004-AI, the supreme court warns that the equality has a double condition: principle and right.
As a principle, it is a component of type axiological, which informs all the national legal system, so that it is observed in every sphere of public power; while as the right works as a privilege of every person, and is opposable to the other, explains the lounge supreme.
In this context, states that the fundamental right to equality results in the prohibition of discrimination, configuring, therefore, as a right-relational.
In this regard, the referee supreme warns the lawyer, Joaquín García Morillo in ‘The general clause of equality’, in: constitutional Law, The constitutional order, Vol. 1 Rights and duties of citizens, Tenth edition, Valencia. pp.159-177 points out: “it Is difficult, indeed, to conceive of the right to equality as an autonomous right, [because] it is difficult to think of a violation of the right to equality that does not involve, at the same time, violation of another right. This is because the specific nature of equality before the law requires that her transgression to be cast on any material particular; not in violation of the equality in the abstract, but in relation to [...] access to public office, freedom of residence, the right to work or effective judicial protection, just to give a few examples.”
In both, at the international level, the hall of supreme verifies that the Convention 111 of the International Labour Organization (ILO) to link the equality with the right to work incorporates two important aspects. First, any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation.
And, second, to any other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be specified by the member concerned after consultation with the organizations, representative employers 'and workers' organisations, where such exist, and with other appropriate bodies.
This text says that the distinctions, exclusions or preferences based on the qualifications required for a job will not be considered as discrimination.
On the other hand, the supreme court notes that the inter-American Court has opted for the differentiation is often made between differential treatment and discrimination.
In paragraph 56 of the Advisory Opinion OC-4/84 of January 19, 1984, supported the idea that discrimination is not the same as different treatment, because in these cases the crux of the debate should include the identification of the reasons that lead to differential treatment, in the pursuit of detecting a difference of objective and reasonable, detailing the hall of supreme.
In line with this, it notes that the Constitutional Court in the STC N° 045-2004-PI/TC accepting the legal position of the jurist Enrique Alonso García expressed in ‘The principle of equality in article 14 of the Spanish Constitution’, in Journal of Public Administration, No. 100-102, Madrid, 1983, p. 37 found that the relationship between the principles of reasonableness and proportionality for the effects of differential treatment consists in identifying that “the distinction of treatment without an objective and reasonable justification, so that the existence of such a justification must be assessed in relation to the purpose and effects of the measure considered, must be a reasonable relationship of proportionality between the means employed and the aim pursued. [...]”.
As a corollary of what developed, the hall of supreme determines that the notion of equality assumes a relationship between the subjects that make up the society, in such a way that it can not be affirmed or denied, on the basis of an analysis that considers the individual in isolation.
Therefore, it appears that in the cases in which the complaint is an act of discrimination, is a key from a term of comparison or tertium comparationis, from which we can perform a comparison between a and the other person.
Case
In the case of the cassation labour, a municipal worker demand is met with the approval of monthly compensation, considering as a counterpart to another worker, duly identified, who perform the same functions comes perceiving a monthly remuneration exceeding which the complainant perceives. In the first instance, the complaint was declared inadmissible, and, on appeal, was declared to be founded. To do this, the municipality respondent filed a notice of appeal in cassation labor, alleging that the second instance, incurred in violation of regulations for non-application of sections 3 and 5 of article 139° of the Constitution.
Source: Peruvian
Date: 03/09/2024
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