12.2.2016

Work discrimination

Work discrimination means that the employer or employer’s representative place a job applicant or an employee in an unequal position compared to other employees in a corresponding situation without any proper and justified reason. 

Work discrimination can be an action, an act or some specific type of treatment. Harassment based on discrimination, which violates human dignity intentionally or factually (for example racist name-calling) is also compared to actual work discrimination.

Intention of discrimination is not required. Therefore discrimination is always evaluated objectively based on the actions of the employer and not based on whether or not the employee perceives the actions discriminative.

Provisions concerning prohibition of discrimination

The Employment Contracts Act is the general law which regulates the relationship between employers and employees. Chapter 2 includes rules about the employer’s obligations concerning for example equal treatment of employees and prohibition of discrimination. Prohibition of discrimination is also found in chapter 47 of employment offences in our Criminal code, in the Non-discrimination act and in the Act on Equality between Women and Men.

The Employment Contracts Act chapter 2 section 1 includes general obligations.

According to section 1, the employer

  • shall in all respects work to improve employer/employee relations and relations among the employees.
  • shall ensure that employees are able to  carry out their work even when the enterprise’s operations, the work to be carried out or the work methods are changed or developed
  • shall strive to further the employees’ opportunities to develop themselves according to their abilities so that they can advance in their careers

The Employment Contracts Act chapter 2 section 2 regulates equal treatment and prohibition of discrimination in more detail. It sets a distinct obligation to the employer to treat employees equally unless there is an acceptable cause for different treatment based on e.g.  the duties and position of the employees. It is also prohibited to apply less favourable employment terms in fixed term and part-time employment relationships merely because of the duration of the employment contract or working hours if there is no proper and justified reason for that.

Work discrimination can occur

  • during the employment relationship
  • when selecting an employer
  • after employment relationship has ended

Thus, work discrimination is unconditionally prohibited without a proper and justified reason. The employer can perpetrate discrimination before any employment relationship has even started, for example when advertising for a vacancy.  The criteria’s set for job applicants must relate to the work and the work duties. Therefore gender seldom plays a role when carrying out work tasks.

Grounds for discrimination

Grounds for discrimination are listed in chapter 47 section 3 of the Criminal Code and in section 8 of the Non-discrimination act. Work discrimination can be based on issues concerning private life or on a person’s rights as well as other ground relation to these.

Grounds for discrimination are divided into two groups:

  1. A person’s stable, private qualities of which one cannot influence: race, national or ethnic origin, nationality, colour, language, sex, age, family status, sexual preference, inheritance, disability or state of health
  2. A person’s civil liberty and things relating to the use of these: religion, political opinion, political or industrial activity or a comparable circumstance like situation where employee has contacted a labour inspectorate

According to the Non-discrimination act, work discrimination can be direct or indirect.

Direct discrimination means that a person, on the grounds of personal characteristics, is treated less favourably than another person was treated, than the person is treated or would be treated in a similar situation.

Discrimination is indirect if an apparently neutral rule, criterion or practice put a person at a

disadvantage compared to others. The rule of personal characteristics can be set aside if the criterion or practice has a legitimate aim and the means for achieving the aim are appropriate and necessary, e.g. necessary for the protection of pregnant person.

Different treatment is not always discrimination

Sometimes it is allowed to treat employees differently. The Non-discrimination act section 9 regulates positive action. Different treatment does not constitute discrimination if the treatment is based on legislation and it otherwise has an acceptable objective and the measures to attain the objective are proportionate.

Positive action intends treatment that aims to promote de facto equality or to prevent or remove the disadvantages attributable to discrimination. For example, a person can be in need of special protection because of age, origin or disability and they need to be set to a different position because of these particular reason. However, actions need to be proportionate considering the intended goals.

Different treatment can be justified without legal basis if the treatment has an acceptable target in the eyes of fundamental and human rights and the actions are proportionate with regards to the achieved outcome.

If the employer or his representative has proper and justified reasons for his actions, these actions cannot be seen as work discrimination. However, the reason needs to be related to the work.  For example recruiting to ecclesiastical vacancies, a certain religious belief can be set as a requirement.

Supervision of rules and sanctions of breach

Supervision of work discrimination relies on the employees. The discriminated needs to report such actions to the labour inspectorate.

A person can receive compensation based on the Tort Liability Act, the Non-discrimination Act or even the Criminal code.

Employer can be convicted to pay

  1. compensation for financial damages based on discrimination
  2. remuneration for suffering, regardless of financial damages

The compensation must be equitably proportionate to the severity of the act. The severity of the act is assessed by taking into account the type, extent and duration of the infringement.

The punishment of work discrimination is fine or imprisonment of maximum six month (Criminal Code 47:3). The Labour Inspectorate notifies the prosecutor if the suspect a case of punishable work discrimination is at hand. It is up to the discretion of the Labour Inspectorate to decide whether to make such a notification, if the common interest or other matters like the paucity of the action or the conditions of the work safety speak against it.

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