13.09.2023 | Articles, SAVALnews
The extension of the Non-Discrimination Ombudsman’s mandate also improves the legal protection of experts and managers who have experienced discrimination.
The task of the Non-Discrimination Ombudsman is to promote equality and prevent discrimination as well as otherwise supervise the enforcement of the Non-Discrimination Act. The office of the Non-Discrimination Ombudsman handles encounters involving discrimination and endeavours to impact structures and legislation.
The office of the Ombudsman is contacted approximately 1,600 times annually. Last year, requests associated with working life amounted to 260 even though supervising working life was not yet included in the mandate of the office. The majority of these cases were associated with recruitment situations, management and working conditions, salaries and wages as well as terms and conditions of employment and the termination of employment relationships. The most significant grounds of discrimination involved state of health, citizenship and age.
As a consequence of the amendment that entered into force in the summer, the Ombudsman can, in future, start handling matters regarding working life. This is a marked improvement for the legal protection of those discriminated in working life. Based on a request by an individual employee, the Ombudsman can investigate an issue of discrimination suspected in working life and take a reasoned position on the matter. While the Ombudsman has the right to assess which action to take as a result of the request, this does not include a subjective right to take a position or decide on other measures.
The Ombudsman can also use coercive measures: they have the right to acquire information from the employer, if needed, under penalty of a fine. Furthermore, they can carry out an inspection of the employer's premises and, in connection with it, also interview the employees. In addition to taking a position, the Ombudsman can promote conciliation between the parties. They can also assist in trials, albeit only in exceptional situations that have a wider social significance.
The extension of the Non-Discrimination Ombudsman’s mandate also improves the legal protection of experts and managers who have experienced discrimination. The members of YTY have already received comprehensive assistance regarding equality matters from our legal services, but it may possible, in future, to add the tools used by the Non-Discrimination Ombudsman to those services. For example, in a situation in which the employer is unwilling to provide the necessary information or assessments, it might be possible to make use of the Ombudsman's right to issue a conditional fine.
A reasoned position may be useful in matters that require court proceedings, as well as in other cases.
As regards the help provided by the Ombudsman in promoting conciliation, it is good to remember that this only applies to situations in which the employer is willing to admit to the discrimination with the realisation that it will become public information. Often, the disputes between employers and employees are resolved through confidential settlements, and the sums of money associated with them may be considerable – in other words, confidentiality is the employer's stipulation for the payment of the settlement to the employee. Thus, the means of conciliation depend on the personal objectives of the discriminated party, namely whether they view the monetary compensation or the public discussion of the matter as the more important outcome.
The mandate of the Non-Discrimination Ombudsman is parallel to that of the labour protection authority, which is the Regional State Administrative Agency (aluehallintovirasto, AVI). The Regional State Administrative Agency has until now had – and will also have in the future – the mandate to monitor discrimination in working life. The Regional State Administrative Agencies have, however, concentrated more on discrimination associated with existing employment relationships. In practice, they have not dealt with discrimination that occurs in connection with recruitment. Additionally, situations in which the employment relationship has already ended – possibly on discriminatory grounds – have, in practice, remained outside the measures taken by the Regional State Administrative Agency. The office of the Non-Discrimination Ombudsman will also handle these kinds of situations, thereby improving the legal protection of discriminated employees considerably in this respect. Discrimination in connection with recruitment will, in particular, be strongly emphasised by the Non-Discrimination Ombudsman.
In future, the Non-Discrimination Ombudsman can request a statement by the National Non-Discrimination and Equality Tribunal regarding working life matters that are considered significant in view of the interpretation and objectives of the Non-Discrimination Act. Unfortunately, the mandate of the Tribunal concerning other working life matters was not extended. Therefore, it is still not possible for the Tribunal to forbid an employer from continuing or repeating its discrimination or countermeasures or to order the employer to take corrective measures. Also, the Tribunal cannot propose a recommendation considering the compensation to be paid to the discriminated party in matters associated with working life, although the recent amendment of the Act made this possible for other types of matters.
In conclusion, I would like to remind that matters associated with gender-based discrimination are still prescribed by the Equality Act, and discrimination in that respect is monitored by the Equal Opportunities Ombudsman, not the Non-Discrimination Ombudsman.
Author: Sirpa Leppäluoto, Director
The article has been published on YTY membership magazine 3/2023
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