Significant changes to discrimination and equality legislation
As from 1 January 2015, the application of the Non-Discrimination Act has been broadened. Specifically, the obligation to promote equality applies not only to the authorities but also to providers of training, educational institutions and employers. Employers must develop an equality policy if they regularly employ at least 30 persons.
In addition, it has been clarified that the prohibition of discrimination also includes discrimination on the basis of assumptions as well as discrimination by association. For example, it will be considered discrimination if unfavourable treatment is based on an assumption concerning the person’s sexual orientation or if a person is treated unfavourably due to the disability of a closely related person. The obligation to make reasonable adjustments to ensure equality for disabled people has been extended to include providers of goods or services. In addition, compensation has been extended and may be payable for all forms of prohibited discrimination. The limit to the amount of compensation has also been removed.
The prohibition of gender discrimination in the Act on Equality between Women and Men has been extended to cover discrimination on the basis of gender identity or gender expression. Moreover, authorities, providers of training and employers are required to prevent such discrimination. The Act on Equality also specifies the contents of an equal pay survey in greater detail than before. The purpose of a pay survey is to ensure that there are no unjustifiable differences in the pay of women and men working for the same employer and performing the same or similar work.
New case law on the obligation to offer work within a corporate group
The Labour Court gave a decision on 15 October 2014 on the scope of an employer’s duty to offer work within a corporate group. For production-related reasons and due to the reorganization of operations, a company terminated an employee who worked for one of the companies of a group but who also acted as the common occupational health and safety representative of four companies belonging to the group. The issue was whether the employer was required to offer work to the OHS representative only within the employer company or also in the group’s other companies.
Though the employer’s obligation to offer work should normally be assessed with respect to the formal employer, the actual situation may require a different response. Under the Employment Contracts Act, if an employer exercises control in personnel matters in another company on the basis of ownership, agreement or some other arrangement and it cannot offer an employee other work equivalent to that defined in their employment contract or equivalent to their training, professional skill or experience, then the employer must investigate the possibility of offering the employee work in other companies under its control.
The group’s parent company and its three subsidiaries had shared personnel and payroll administration and had the same address and the same owner exercising control over all of the companies. The Labour Court ruled that, because of this, the duty to offer work also extended to the three other group companies. According to the Labour Court, the OHS representative would have been qualified for another vacancy within the group but the employer did not offer the work. Thus, the termination of the employment contract was unjustified.