ECtHR did not find discrimination in different sick leave rules for self-employed and employed workers

The European Court of Human Rights, in its decision dated May 19, 2026, in the case of Stanković v. Bosnia and Herzegovina, confirmed that differences in social insurance between self-employed persons and employed workers can be justified and do not violate the prohibition of discrimination.

According to the case, a self-employed lawyer insured under the mandatory health insurance system applied to the Health Insurance Fund of the Republika Srpska for compensation of salary for the period of temporary incapacity due to pregnancy. She requested payment of 1,401.18 convertible marks (approximately 717 euros) for the period from May 1 to July 4, 2019. However, the Fund refused, stating that such a right was provided only for insured employees, but not for self-employed persons.

The applicant claimed she was discriminated against due to her professional status as a self-employed person. She emphasized that as a self-employed lawyer, she was obliged to pay monthly health insurance contributions based on the average gross salary in the Republika Srpska, regardless of her actual income, which could have been lower.

Despite regular payment of contributions, she was denied the right to one of the basic benefits provided by the 1999 Health Insurance Act — salary compensation during temporary incapacity.

In contrast, the Government denied the existence of discrimination, noting that the legal regulation of employees and self-employed persons is different. In particular, the rights of employees are defined by the Labor Law, while the activities of freelancers are regulated by special legislation. Furthermore, health insurance contributions for employees are directly linked to wages and paid by the employer, whereas for self-employed persons, the state sets a different calculation base, considering the specifics of their economic activity.

The Government emphasized that due to these differences, self-employed persons and employees are not in a similar legal position, and therefore comparing these groups is incorrect for the purpose of establishing discrimination.

The decisions of administrative bodies were confirmed by courts at the national level, including the Constitutional Court, which found no signs of discrimination, pointing to differences in the legal status of these categories of insured persons.

Reasons considered by the ECtHR

In examining the case, the European Court of Human Rights noted that the dispute concerned different approaches under the 1999 Health Insurance Act, which was in force at the time of the events, towards self-employed persons and employees regarding the right to salary compensation during temporary incapacity.

The applicant sought such payment for the period of sick leave related to pregnancy, during which she was actually unable to perform professional activities. At the same time, the Court noted that the right to compensation was not exclusively tied to pregnancy but could arise from various grounds of temporary incapacity.

The ECtHR concluded that the difference in treatment in this case was based on the "different status" of the applicant within the meaning of the prohibition of discrimination provided by Article 1 of Protocol No. 12 to the Convention.

The Court noted that employees and self-employed persons operate under different legal and economic conditions. Employees receive guaranteed wages and have the right to compensation in case of temporary incapacity according to labor legislation. Moreover, their insurance contributions are linked to actual wages, and the first 30 days of sick leave are usually covered by the employer.

In contrast, self-employed persons are not in employment relationships and do not have an employer, thus bearing financial risks of periods of incapacity themselves. The calculation base for insurance contributions is also different, which, according to the Court, confirms the distinct nature of these categories of insured persons. The Court emphasized that in the field of social and economic policy, the state enjoys a wide margin of appreciation, and the assessment of such models of social insurance organization largely belongs to the national legislature.

The ECtHR also noted that new legislation adopted in 2022 has already eliminated the difference between these categories and provided equal rights to compensation for temporary incapacity for both employees and self-employed persons.

In view of this, the ECtHR concluded that the applicant did not prove being in a substantially similar situation to employees, and therefore the difference in treatment cannot be regarded as discriminatory.

Accordingly, the Court found no violation of Article 1 of Protocol No. 12 to the Convention.

In this case, the Court confirmed that differences in approaches to social insurance for self-employed persons and employees are not, in themselves, a sign of discrimination.

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