Equal Treatment and Non-Discrimination
An employer is under a legal obligation to treat its employees equally and without discrimination. Equal treatment of employees is regulated by the Employment Contracts Act, the Non-Discrimination Act, the Equality Act and the Criminal Code.
Equality Requirement and Discrimination Prohibition in the Employment Contracts Act
The requirement for equal treatment in the Employment Contracts Act means, among other things, that an employer has to treat all its employees equally. This means that employees must be treated the same way in similar situations. Equal treatment has to be taken into consideration among other things when an employer grants benefits or sets obligations to its employees (e.g. terms of employment, work arrangements, giving tasks, granting benefits, choosing employees to trainings or career progress). Employees must be treated equally, unless deviating from this is justified in context of the duties and position of the employee. For example, the amount and quality of benefits may vary on the grounds of the employee’s position and tasks.
Discrimination prohibition means that an employee must not be put in a worse position than his/her colleagues on the basis of, for example, health, nationality, language, religion, political activity, age or gender. Nowadays, the Employment Contracts Act refers to provisions of the Non-discrimination Act regarding non-discrimination. When an employer selects employees or makes other decisions related to an employment relationship, the basis for the decision must be the requirements of the position in question and the employee must not be discriminated on the basis of personal characteristics. An employer who has breached the discrimination prohibition shall, according to the Non-Discrimination Act, pay compensation to the employee who has been discriminated. There is also a penalty for breaching the discrimination prohibition set in the Criminal Code.
More on equal treatment and discrimination prohibition below.
According to the law, it is forbidden to apply more unbeneficial terms and conditions to the employees with fixed term employee contracts or part time contracts just because of the nature of the contract. The employer must have a justifiable reason for e.g. treating fixed term employees differently than permanent employees.
Obligations under Equality Act and a Discrimination Prohibition
The aim of the Equality Act is to further the equality between men and women and improve women’s position especially in working life. Furthermore, it is also an objective of the Equality Act to prevent discrimination based on gender identity or gender expression.
Every employer shall improve gender equality purposefully and systematically. An employer who employs more than 30 persons must, produce an action plan for the furthering of equality [Gender Equality Plan].
The Equality Act prohibits discrimination on the basis of gender, gender identity, gender expression, pregnancy, childbirth, parenthood and family care responsibilities, among other things. Sexual and gender-based harassment are also considered prohibited discrimination according to the Equality Act. In addition, any order or instruction to engage in discrimination based on gender is considered discrimination.
The employer must be able to present an acceptable reason for its conduct if it disregards a more qualified employee during recruitment, applies different payment terms on men and women or otherwise puts them in different position, e.g., while terminating employee contracts or laying off employees.
It is important to note that it is the employer’s responsibility to also intervene in sexual harassment and gender-based harassment at the workplace if it becomes aware of such. Neglecting this obligation is considered discrimination.
If an employee is dismissed or placed into an otherwise unbeneficial position by the employer after he/she has referred to his/her rights and obligations set in the Equality Act, the employer’s conduct is also considered prohibited discrimination.
The employer shall without delay give a written report of its conduct upon request to a person who considers himself/herself supplanted in a recruiting situation. The report shall include the following: selection criteria of the employer and the education, work experience and other experience of the applicant who was selected. In addition, other merits and factors that have influenced the decision and can clearly be indicated shall be included. The employer shall also without delay provide a written report of the grounds of its conduct to an applicant or an employee who considers that he/she has been discriminated against in another manner that is prohibited in the Equality Act.
The employer shall also provide the employee a report of the grounds of the payment of salary and other employee-related necessary information for the evaluation of the equality of the salary payment and whether or not the prohibition of discrimination is breached. When there is a just reason to suspect salary discrimination based on gender, a shop steward and the elected representative or other agreed employee representative also has an independent right to receive information on the salary and the terms and conditions of employment of an individual employee or employee group. Provision of information concerning a singular employee requires the consent of the employee in question.
An employer that has breached the Equality Act’s discrimination prohibition, shall pay at least a compensation of 3.740 euros (in 2023) to the employee who has been discriminated against, and in a recruitment situation a maximum of 18.690 euros (in 2023) depending on the severity of the breach. The amount of the compensation is reviewed every three years. Payment of the compensation does not prevent the infringed party from demanding indemnification for economic loss according to the Tort Liability Act or other law.
Discrimination Act’s Discrimination Prohibition
The Non-discrimination Act imposes an obligation on employers to promote equality in recruitment, organizing of working conditions and in employees’ career advancement. An employer that regularly employs at least 30 persons must have a plan of the necessary measures for the promotion of equality [Equality Plan].
Non-discrimination means equal treatment of all people regardless of person-related characteristics such as age, ethnic origin, nationality, religion, language, conviction, opinion, political activity, trade union activity, family relations, health, disability or sexual orientation. No one shall be discriminated against on these grounds.
As discrimination is considered not only unfavorable treatment compared to another, but also an apparently neutral provision or practice which in fact leads to a person being at a disadvantageous position compared to others. See also [Prohibition of Discrimination, Equal Treatment and Non-Discrimination Demand in Recruitment]. Instructions or orders to discriminate are also considered discrimination.
Differences in treatment at the time of recruitment as well as during the employment relationship are justified if they are based on genuine requirements concerning the quality and performance of the work tasks and are proportionate to the objective of the treatment. Different treatment based on age or domicile may also be allowed on particular prerequisites provided in the law.
According to the law, an employer has to make required and appropriate adjustments necessary for persons with disabilities to be able, equally with others, get work, to perform their work tasks and to advance their careers. When assessing the reasonableness of the adjustments, the needs of the disabled person are the primary consideration. The size, financial situation, nature and extent of operations of the employer and the estimated costs and available support for the adjustments are also taken into account. It is important for employers to notice that denying reasonable adjustments is considered discrimination. On request, the employer must promptly provide a written report on the grounds of its conduct to a disabled person, who considers that he/she has been discriminated against by the denial of reasonable adjustments while applying for employment or during an employment relationship.
Harassment is also considered prohibited discrimination. Conduct that intentionally or actually violates the dignity of a person or a group of people is considered harassment if the violating conduct relates to the above mentioned characteristics of the person and creates an atmosphere that is degrading, humiliating, threatening, hostile or offensive to the person or group of people. It is important to note that it is the employer’s responsibility to intervene in harassment at the workplace if it becomes aware of such. Neglecting this obligation is considered discrimination.
An employee must not be placed in an unfavorable position or treated in such a way that he/she suffers adverse consequences, because he/she has invoked their rights or obligations under the law, participated in the investigation of a discrimination case or taken action to ensure equality. The employee cannot be dismissed or moved to a different position, for example.
The Non-discrimination Act also prohibits discriminatory job advertisements. An occupational safety and health authority may prohibit a discriminatory advertisement on the threat of a fine. Only a job applicant who has in fact applied for the job and has not become selected is entitled to demand a compensation for discrimination.
An employer that treats an employee unfavorably in relation to other employees due to person-related grounds or whose workplace practice puts the employee at a disadvantage in relation to other employees, or who does not address workplace harassment, may be ordered to pay the employee compensation for breaching the Non-discrimination Act. A victim of retaliatory actions is also entitled to compensation. Also, A disabled person who has been denied reasonable adjustments is eligible for compensation.
There is no maximum amount of compensation set in the law. The compensation must be proportionate to the seriousness of the offence, assessed by taking into account the nature, extent and duration of the infringement. Payment of the compensation does not prevent the infringed party from demanding indemnification for economic loss according to the Tort Liability Act or other law. When assessing the amount of compensation, any indemnification awarded for the same act is taken into account.
There is also a penalty for breaching the discrimination prohibition set in the Criminal Code.
Compliance with the Non-discrimination Act in working life is monitored by the Non-Discrimination Ombudsman and the occupational safety and health authorities.