Monitoring anti-discrimination law in the workplace
Slovakia’s National Labour Inspectorate is obliged by law to monitor the compliance of the country’s employers with anti-discrimination legislation. The inspectorate has focused on this area of labour law since 2010, publishing annual summaries of its findings on the issue. Its most recent summary for 2012 shows that more than 5,000 complaints were investigated by its inspectors, and more than 1,900 violations of anti-discrimination legislation were detected.
The principle of equal treatment for Slovakian citizens is established by the provisions of two Acts of the National Council, Law No. 365/2004 Coll. on Equal Treatment and the amended Anti-Discrimination Act. They safeguard the right of equal treatment in employment and similar legal relationships, access to social security and social benefits, health care, and provision of goods and services including housing and education. The legislation also defines the legal protection offered against violation of the equal treatment principle. In addition, Slovakian employers are also obliged by labour legislation to treat employees fairly and in accordance with the principle of equal treatment.
The duties of Slovakia’s National Labour Inspectorate (NIP), as set out in Law No. 125/2006 Coll. on Labour Inspection and its amendments, include the obligation to check that labour laws are being complied with and also that employers are treating their employees fairly.
The NIP publishes an annual report summarising its findings in relation to anti-discrimination legislation. Its summary of the 2012 report (published in March 2013) records that 103 complaints were made to the NIP specifically alleging violation of the equal treatment principle in 2102. After investigation, 11 were found to be justified, and inspectors observed that in the vast majority of cases the complaints had been prompted by the subjective opinions of employees. However, where employees and employers’ views of a particular case are contradictory, the inspectorate has no power to decide the outcome of the dispute and can only refer the case to a court hearing if the parties continue to disagree.
Other complaints indirectly involved the anti-discriminatory behaviour of employers towards employees. In 2012, a total of 5,257 complaints of this kind were investigated by the inspectorate, 412 fewer than in 2011. More than 1,900 violations of anti-discrimination legislation were discovered. The objective of these inspections was positive intervention to improve unfavourable situations and encourage compliance with the anti-discrimination provisions of the Labour Code. Most cases were recorded in the Prešov region, where there were 27, and least in the Trnava region, where there were just two.
The most common complaints were gender-based, where women complained they were:
- paid less because they were women;
- bullied by managers;
- harassed or mobbed by colleagues.
A common focus of complaint was the behaviour of managers during their supervision of labour activities. Issues raised included inappropriate or vulgar behaviour, discrimination when evaluating employees’ work, discrimination when employment was terminated, and discrimination in the allocation and division of labour.
The law obliges the NIP to investigate complaints within 30 days of their submission, and it is possible to extend this deadline only in extraordinary cases with proper justification.
All complainants received counselling about the principle of equal treatment and were advised to approach their employer in the first instance with their problem, if they had not already done so, and if necessary to take their complaint to the relevant court or request assistance from the Slovak National Centre for Human Rights.
It is quite difficult for the NIP’s inspectors to detect discrimination in the workplace since there is usually not enough objective evidence to support a complaint. While the burden of proof is reversed in such cases and the accused employer has to show they are complying with the law, an investigation has to be based on evidence from the inspectors to prove that there has been a violation.
Between 2011 and 2012, the number of complaints from employees or former employees decreased and the number of complaints resolved by the labour inspectorate also decreased.
The labour inspection may document unequal treatment of an employee or group of employees in the workplace but to support an allegation of discrimination, there has to be proof that can be presented to a court to show that the unequal treatment has been based on a factor such as skin colour, union membership, health status, ethnic group or gender. Employers will, of course, reject any suggestion that a reason of this kind lies behind unequal treatment in the workplace.
The NIP’s inspectors therefore have difficulty determining whether discrimination or violation of anti-discrimination legislation has in fact occurred. One possible way forward would be to give the NIP more powers than they have at present – when staff can refuse to provide information, the inspectorate has to keep the complainant’s identity secret, and so on – to determine whether anti-discrimination legislation has been violated.
Miroslava Kordosova, Institute for Labour and Family Research