The employer must promote equality among employees and must not discriminate among its employees or job applicants. Employers also have particular obligations towards disabled persons, so that they might gain employment and perform their job duties equally with other employees.
This text discusses the new Non-discrimination Act that entered into force on 1 January 2015. In the case of suspected discrimination at work before the entry of the new Act into force, the old Non-discrimination Act shall be applied in its investigation.
‘Discrimination in working life’ is defined as treating job applicants or employees differently on the basis of a characteristic or feature of the person himself/herself or a family member of theirs. Such characteristics and features are known as prohibited grounds for discrimination. Prohibited grounds for discrimination specifically listed in the Act are:
- political activity,
- trade union activity,
- family relationships,
- state of health,
- sexual orientation, or
- any other personal characteristics.
There may be multiple grounds for discrimination involved in discrimination against a job applicant or employee.
Discrimination is prohibited in hiring, during the employment relationship and in terminating the employment relationship. The employer may commit discrimination even before the hiring process itself, i.e. in setting selection criteria or in the wording of job advertisements. A job ad must not impose any requirements or requests on job applicants that are irrelevant for the performing of the job duties.
Employment and work by disabled persons must be supported
It is more difficult for a disabled person to find employment than it is for one who has no disability or injury restricting work performance. A ‘disabled person’ is defined as a person with a permanent or chronic physical, mental, intellectual or sensory disability that may prevent them from participating in working life fully or equally with other workers.
Such a disability may be congenital or caused by an accident.
In order for a disabled person to find employment and perform his/her job duties, it may be necessary for an employer to make certain arrangements to working hours or working conditions, acquire certain tools or make structural changes to the workplace to ensure accessibility. Such measures are known as adjustments.
Adjustments may concern:
- the physical environment (obstacles to movement),
- tools (dimensions, assistive devices), or
- working arrangements (work organisation, working hours, use of an assistant).
However, only reasonable adjustments (reasonable accommodation) may be required of the employer. In assessing the reasonableness of the adjustments, attention shall be given, in addition to the needs of the person with disabilities, to the size and financial position of the company, the nature and extent of its operations and the estimated costs of the adjustments. If it is possible for the employer to receive a subsidy contributing to such adjustments, this must be taken into account in assessing reasonableness.
For the employer to deny an employee reasonable accommodation constitutes discrimination. If a disabled person considers that he/she has been discriminated against because of being denied reasonable accommodation, the employer must on request provide a written explanation of his reasons for said denial. This obligation applies both to recruitment and to any decisions made during and at the termination of the employment relationship.
Employee equality must be promoted
The employer must actively promote equality among employees and discourage discrimination at the workplace. This requirement particularly applies to those grounds for discrimination that are relevant at the workplace. The aim is for the workplace to observe genuinely non-discriminating practices in recruitment, career advancement, assignment of job duties, decisions on pay and benefits, access to training and workplace community development.
For the employer to be able to promote equality among employees, he must first assess how well equality is already being observed at the workplace. If necessary, the employer must develop specific non-discriminatory practices in working conditions and procedures for recruitment and HR decisions.
An employer with 30 or more employees must have a plan in place to promote equality at the workplace. There is no set form for such a plan, but it must be available for verification and inspection.
The plan may be combined with another plan required for the workplace, such as the occupational safety and health policy or the gender equality plan.
Promotional measures and their effectiveness must be discussed with personnel or their representatives (shop steward or personnel representative). The personnel representative is entitled to be informed on request what measures the employer has taken to promote equality at the workplace.
If you suspect that you have been discriminated against in working life, do this:
1. Ask your employer for an explanation. Discuss with your employer the practice that you feel is discriminatory and ask him to provide a written statement explaining that practice. In case of harassment, ask the employer to intervene.
2. You may also take the matter up with the occupational safety and health representative or the shop steward.
3. If, even after discussing the matter with the employer, you suspect that you have been discriminated against on one of the prohibited grounds of discrimination, or if your employer does not give you an explanation, contact your local Regional State Administrative Agency to request an investigation. You may make contact anonymously if you wish.
4. Act promptly, because there is a time limit on reporting discrimination.
5. When you intend to report a case of suspected discrimination to the Regional State Administrative Agency, be prepared to respond to the following questions posed by an inspector:
- Which actions or negligence on part of your employer do you consider discriminatory?
- Which prohibited grounds of discrimination described by law do you consider apply to your case?
- Was your employer aware of such grounds for discrimination applicable to you before making the decision in question?
- Why do you consider that your employer has discriminated against you on these grounds?
- How did the employer justify the action that you consider discriminatory?
6. You should be aware that any documents you submit to the authorities are public by default.
7. If you are seeking to sue for compensation, you should contact your trade union or a lawyer specialising in employment law. The occupational safety and health authorities do not pursue compensation claims or provide assistance for them.
8. You may also contact the office of the Non-Discrimination Ombudsman. The Non-Discrimination Ombudsman may, at her discretion, assist persons discriminated against in the investigation of their claims of discrimination.
Promoting equality is the employer’s responsibility
The employer must actively promote equality and develop genuinely non-discriminatory working conditions and practices. The aim is to incorporate the promotion of equality into regular workplace development. Promotion of equality may be combined with the hazard assessment provided for in the Occupational Safety and Health Act and the related occupational safety and health development process.
Non-discrimination begins with job ads
When announcing a vacancy, job applicants must not be required to have any personal characteristics or features that have no relevance for the work to be performed.
The employer must also consider carefully what information to ask applicants to provide on application forms. Asking applicants to list irrelevant personal characteristics and features such as marital status or children may prompt the assumption that such information will be used as criteria for selection.
Measures to promote equality
1-2: Chart the current state of equality at the workplace and identify development needs
The employer is required to evaluate the achievement of equality at the workplace. The purpose of the evaluation is to find the circumstances and procedures that prevent equality from being achieved. The evaluation leads to conclusions allowing the selection of appropriate measures to promote equality.
Achievement of equality at the workplace may be investigated for instance by using checklists and personnel surveys. Information on personnel structure and interviews with employees may also be used.
Achievement of equality must be considered with regard to all of the prohibited grounds for discrimination that are relevant for the workplace. The question of which grounds for discrimination actually are relevant for the workplace must be discussed with personnel or their representative.
The evaluation must cover all working conditions and practices followed in recruitment and HR decisions: whether the working conditions and procedures are non-discriminatory from the perspective of various groups at risk of discrimination. In evaluating equality, the employer must review procedures at least in:
- assignment of job duties,
- deciding on access to training,
- deciding on pay and benefits, and
- deciding on responsibilities related to work and employment relationships.
The employer must note that grounds for discrimination may arise from personal characteristics the information concerning which is sensitive and whose handling at the workplace is therefore restricted by law.
3. Draft a plan for the measures required
Employers who have 30 or more regular employees must have a plan in place concerning measures to promote equality, i.e. an equality plan. The plan must cover all of the prohibited grounds for discrimination deemed relevant for the workplace.
The employer may select the methods best suited to the needs of the workplace for promoting equality. The equality plan may be a separate plan or incorporated in any other plan required at the workplace, such as the gender equality plan under the Act on Equality between Women and Men, the personnel plan under the Act on Co-operation in Undertakings, or the occupational safety and health policy under the Occupational Safety and Health Act.
The content and extent of the equality plan are determined by the evaluation performed by the employer. The plan must list the concrete actions required in the workplace for achieving true equality. The equality plan may include an evaluation of the current state of affairs and a description of earlier promotional action and its impact.
The equality plan must be in place by the end of 2016.
4. Measures to promote equality
The employer must promote equality through action deemed necessary because of the development points and eventual problems identified in the evaluation. The nature and extent of such action depends on the needs of the workplace and the resources available.
Promotional measures are concrete actions that affect the actual situation regarding equality at the workplace, such as arranging the work so as to take the needs of employees at risk of discrimination better into account. Actions may also include support for vulnerable employees, such as support (known as positive discrimination) for the elderly or the incapacitated.
Measures to prevent discrimination and harassment also qualify. Such measures include procedures for processing suspected discrimination at the workplace and non-discrimination training for employees and supervisors.
5. Monitor the measures to see if they are sufficient
The employer must monitor the equality situation at the workplace continuously and evaluate whether the measures taken have had the desired effect. If necessary, the employer must revise or further specify the measures to promote equality.