How to treat workers so as not to infringe their rights? When can we talk about discrimination? What is the difference between harassment and sexual harassment at work?
Your workers have equal rights for performing the same duties equally. In particular, men and women must be treated equally in employment. This rule is derived directly from the Labour Code. In accordance with the Labour Code, workers should be treated equally in terms of:
- the establishment of employment relationships
- the determination of the conditions of employment
- promotion and access to training courses aimed at improving professional qualifications
- the termination of employment relationships.
The list of grounds on which employers cannot differentiate between workers is open-ended. Some examples listed in the Labour Code are:
- political beliefs
- trade union membership
- ethnic origin
- sexual orientation
- employment for a definite or indefinite period
- employment on a full-time or part-time basis.
Equal treatment in employment means that there must be no discrimination of any sort, either directly or indirectly. In order for discrimination to occur:
- an employer does not need to discriminate against all workers on particular grounds
- a worker does not need to be consciously and deliberately discriminated against by the perpetrator.
Direct discrimination occurs when a worker was, is or could be treated less favourably than other workers in a comparable situation, for one or more reasons regarded as discriminatory criteria.
An employer organises a training course which is useful in the daily work of every worker employed at that company. All the workers employed at the establishment, except for a worker aged 50+, are to participate in the training course. The employer denies that person the opportunity to participate in the training course. The reason he gives for this is the need to invest in younger workers. This can be regarded as an instance of direct discrimination on the grounds of age.
Indirect discrimination occurs when an apparently neutral provision, criterion or action results or could result in unfavourable disparities or put workers at a particular disadvantage in terms of the establishment and termination of employment relationships, the conditions of employment, promotion and access to training courses aimed at improving professional qualifications compared with all or a substantial number of workers belonging to a group distinguished for one or several reasons regarded as discriminatory.
Remuneration rules applied at an establishment make a monthly financial bonus contingent on specific work performance (the number of components manufactured). Workers employed on a part-time basis are unable to manufacture the amount of components needed to acquire the right to this benefit. In consequence, a particular group of workers at the establishment is indirectly discriminated against on the grounds of employment on a part-time basis.
Indirect discrimination does not occur if a provision, criterion or action of an employer is objectively justified by a legitimate aim to be achieved and the means of achieving this aim are appropriate and necessary.
Discrimination also occurs if another person is encouraged to infringe the principle of equal treatment in employment or instructed to infringe this principle.
A marketing director instructs a director of the recruitment department to employ only women under the age of 25 as waitresses in a chain of restaurants, regardless of the candidates’ experience and skills, in a situation in which this is not justified by any objective reasons. The nature of the work and the way in which it is performed do not require that only such persons perform it. A worker who is encouraged by a superior or employer to act in a discriminatory manner may refuse to carry out the instructions as they are unlawful.
Harassment is one of the forms of discrimination. It occurs when unwanted conduct takes place with the purpose or effect of violating the dignity of a worker and of creating an intimidating, hostile, degrading, humiliating or offensive environment against that person.
Harassment occurs when the reason for the unwanted conduct is one of the discriminatory criteria, in particular sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, denomination, sexual orientation, employment for a definite or indefinite period and employment on a full-time or part-time basis.
Sexual harassment is a type of discrimination on the grounds of sex. In order for the given conduct to be classified as sexual harassment, it must:
- be unwanted
- be sexual in nature or be related to the sex of a worker
- take place with the purpose or effect of violating the dignity of a worker and, in particular, of creating an intimidating, hostile, degrading, humiliating or offensive environment against that person.
Sexual harassment may be physical, verbal or non-verbal. Examples of such conduct are:
- requests for sexual favours from persons in a dominant position
- sexual blackmail
- obscene innuendos or jokes
- the display of pornographic material, such as drawings or films.
A person who is subjected to harassment or sexual harassment should reject the unwanted conduct. The rejection may be:
- verbal in nature and consist in, for example, directly addressing the perpetrator and informing that person that his or her conduct is unwanted
- non-verbal in nature and consist in, for example, avoiding contact with the perpetrator.
If the victim rejects the harassment, the employer will be able to take action against the unwanted conduct and counteract it. Rejection is also important if evidence needs to be provided. This is confirmed by the case-law, which indicates that the victim must substantiate the claims that:
- sexual harassment took place
- he or she rejected that conduct.
At this point, the burden of proving that the harassment did not take place (rather than of substantiating the claims) will rest with the employer. It is an exceptional procedural situation, in which the person who initiates proceedings (worker) is not required to prove his or her claims but needs only to substantiate them. In practice, workers present their versions of the events in the claim and during a hearing, and it is the employer who must demonstrate that the worker’s allegations are not true and provide evidence to confirm this.
Important: Workers cannot suffer any negative consequences, whether they submitted to harassment or rejected it.
The principle of equal treatment is one of the basic principles of human resource management by employers. It implies that workers who carry out the same duties must enjoy equal rights. In accordance with the principle of equal treatment, workers should be treated equally in terms of:
- the establishment of employment relationships
- the conditions of employment
- access to training courses aimed at improving professional qualifications
- the termination of employment relationships.
It is considered that the principle of equal treatment in employment has been infringed if an employer differentiates between workers, for example, by:
- refusing to establish an employment relationship
- establishing unfavourable remuneration conditions or other conditions of employment or passing workers over when giving promotions or awarding other work-related benefits
- passing workers over when selecting participants for training courses aimed at improving professional qualifications
- terminating employment relationships
unless the employer proves that he or she was motivated by objective reasons.
The difference between the principle of equal treatment and discrimination of a worker is that discrimination is one of the possible forms of unequal treatment and consists in unequal treatment on the grounds of a discriminatory criterion. However, as unequal treatment is not always linked to a specific discriminatory criterion, it will not always involve discrimination.
The consequences of infringing the principle of equal treatment and of violating the prohibition of discrimination are different. In the first case, an employer may be held liable for damages on the general terms of contractual liability. In the case of discrimination, the Labour Code provides for compensation not lower than the minimum remuneration. In the case of contractual liability, no lower limit for compensation has been established.
There is no upper limit for compensation in both cases. The amount of compensation awarded to a worker is left to the discretion of the court, which will take into account how the employer or worker acted and to what extent the prohibition of discrimination was infringed. The guidelines for the EU directive on equal treatment in employment and occupation indicate that sanctions imposed by an employer on workers must be effective, proportionate and dissuasive.
Differentiation between workers is not always unlawful.
Differences in treatment are permitted in certain cases, if they are proportionate to the achievement of a legitimate aim of differentiating between workers.
An employer may apply measures that differentiate between workers’ legal situation due to the protection of parenthood or disability.
The length-of-service criterion may also be applied when determining conditions for employing and dismissing workers and rules for providing remuneration, promoting workers and providing access to training courses aimed at improving professional qualifications. Greater length of service may justify better working conditions for workers loyal to their employers.
An employer may also refuse to hire a worker due to one or more legally protected reasons if the type of work or the conditions in which it is performed make a reason or reasons listed in the Labour Code an actual and decisive occupational requirement to be met by workers.
Temporary equalisation of opportunities of all or a substantial number of workers distinguished for one or several legally protected reasons by reducing actual disparities in favour of such workers also does not constitute an infringement of the principle of equal treatment. Persons with disabilities are an example of such a group of workers.
The restriction of access to employment on the grounds of religion, denomination or belief by churches and other religious associations, as well as organisations whose ethos is based on religion, denomination or belief also does not infringe the principle of equal treatment. However, access may be restricted only if the type or nature of these entities’ activities makes religion, denomination or belief an actual and decisive occupational requirement to be met by a worker. This requirement must be proportionate to the achievement of a legitimate aim of differentiating between the situation of that person and that of other workers. In this respect, the above entities may require that the worker acts in good faith and with loyalty to the ethos on which their activities are based.
Workers are entitled to equal remuneration for equal work or work of equal value.
Equal work is work that is the same in terms of type, qualifications needed to perform it and conditions in which it is performed, as well as quantity and quality. However, workers who perform the same type of work or hold the same position need not necessarily receive equal remuneration as their performance may differ in diligence, workload and timeliness.
Work of equal value is work that requires workers to have comparable professional qualifications, confirmed by appropriate documents or professional practice and experience, and comparable responsibility and effort.
Please note Work in a situation where two workers hold a position with the same name but one of them also manages a team of subordinates while the other worker is an independent expert is not equal work.
Remuneration includes all the components of remuneration, regardless of their name and nature, as well as other work-related benefits, granted to workers in cash or in other forms than cash. Awards are therefore part of remuneration in the light of the provisions concerning the prohibition of discrimination, although it should be borne in mind that, unlike bonuses, they are discretionary in nature.
In accordance with the legislation, the primary obligation of employers is to combat discrimination in employment. Employers should also organise work at their companies in such a way as to prevent unequal treatment of workers, harassment or sexual harassment.
In order to avoid practices which may be regarded as discriminatory at their companies, employers may:
- introduce anti-discrimination procedures, which may in particular:
- explain basic concepts relating to unequal treatment, discrimination, harassment and sexual harassment
- inform how such conduct may be reported
- determine how employers should proceed after such conduct is reported
- determine the level of confidentiality of actions and possible outcomes of proceedings
- appoint a representative for combating discrimination, i.e. a person to whom workers and other persons who consider that they have been victims of discrimination of other unwanted conduct in the workplace may refer to
- introduce a transparent worker remuneration policy, as part of which workers will be able to inquire about employers’ decisions on remuneration arrangements
- organise training courses for workers so that they are able to spot discrimination
- organise training courses for managerial staff so that they are able to prevent discrimination in their teams
If any worker substantiates allegations of discrimination, the burden of proving that the discrimination, harassment or sexual harassment did not take place will rest with the employer. The worker will be able to claim compensation from the employer if he or she has faced any form of such conduct at the company. In accordance with the legislation, the compensation cannot be lower than the minimum remuneration.
If workers allege that employers have infringed the provisions on the prohibition of discrimination and demand that the principle of equal treatment in employment be applied, then they should indicate on what grounds they have been discriminated against and indicate circumstances demonstrating that they have been treated unequally on those grounds. In disputes in which workers claim that the prohibition of discrimination has been infringed, they should substantiate their allegations that direct or indirect discrimination has occurred before the court, at which point the burden of proving that the differentiation between workers has been motivated by objective reasons is transferred to employers.
Please note A worker who feels discriminated against may bring a claim against the employer to the court also if the direct perpetrator was another person, for example the victim’s co-worker or superior.
Workers who have exercised their rights in connection with discrimination, harassment, sexual harassment or unequal treatment cannot suffer any negative consequences. Above all else, they cannot be dismissed for this reason. The same applies to workers who have lent support to a worker that has sued the employer, for example have testified in that person’s favour during court proceedings.
If an employer does not adhere to the principles of equal treatment and non-discrimination at work, which constitutes a severe breach of employers’ obligations, a worker may exercise the right to terminate the employment contract concluded with the employer with immediate effect, i.e. without the required period of notice.
An employer must make the provisions on equal treatment in employment available to workers in the form of a written notice distributed in the workplace or ensure that workers have access to these provisions in another manner adopted at the company, for example by displaying them on a notice board or publishing them on the intranet.