In the sixth of our international monthly series of articles by guest contributors, Seppo Havia and Jessica Brander of Dittmar & Indrenius look at discrimination protections in Finland.
International Series #6 – Finland: Discrimination in Employment
The Finnish provisions on non-discrimination and equality are scattered around different pieces of legislation. The Non-discrimination Act prohibits discrimination in general, while separate acts govern discrimination in employment and gender equality issues.
Taking all such legislation into account, Finnish law prohibits discrimination on the following grounds:
- age;
- health;
- gender;
- disability;
- racial or ethnic origin;
- nationality;
- sexual orientation;
- language;
- religion;
- opinion;
- belief;
- family ties;
- trade union activity;
- political activity; or
- any other comparable circumstance.
Discrimination in Employment
Discrimination in employment can take place in connection with job advertisements or recruitment as well as during the course of employment, for example as pay discrimination, discrimination in working conditions or discrimination due to pregnancy or parenthood. Discrimination may occur in one of the following ways:
- treatment of a person less favourably than the way another person is treated, has been treated or would be treated in a comparable situation (direct discrimination);
- an apparently neutral provision, criterion or practice putting a person at a particular disadvantage compared with others, unless there is an acceptable aim and the means used are appropriate and necessary for achieving this aim (indirect discrimination);
- deliberate or de facto infringement of the dignity and integrity of a person or a group of persons by creating an intimidating, hostile, degrading, humiliating or offensive atmosphere (harassment). The concept of harassment also covers sexual harassment and gender-based harassment;
- an instruction or order to discriminate; or
- unfavourable treatment of an employee, who has asserted his rights based on discrimination law or undertaken measures to safeguard equality, e.g. increased monitoring by the employer of the work of an employee who has contacted the industrial safety authorities due to suspected discrimination.
If harassment or other inappropriate treatment of an employee occurs at work and causes hazards or risks to the employee’s health, the employer must, after becoming aware of the matter, take the necessary measures which are available to remedy the situation. Failure to do so will render the employer guilty of discrimination.
Work discrimination issues are monitored by the industrial safety authorities, which apply a rather low threshold for requesting police investigation or the public prosecutor to press charges in alleged situations of discrimination.
Justified Grounds for Different Treatment
Finnish employers have a general duty to treat their employees equally. The Finnish Employment Contracts Act specifically prohibits the employer from exercising any unfounded differential treatment of its employees. Deviations from equal treatment are only possible based on justified grounds and on the following conditions:
- the aim of the employer’s actions is acceptable; and
- the means chosen are necessary for achieving the desired purpose and, with regard to the purpose of the actions, are appropriate and proportionate.
Notwithstanding the above, positive discrimination in favour of certain underrepresented groups may be justified in order to prevent discrimination and to achieve genuine equality, as long as the actions undertaken are temporary and proportionate to their objective. Difference in treatment may also be justified based on a genuine and decisive requirement relating to a specific type of work and its performance.
Discrimination Claims
Claims of discrimination in employment can be raised throughout the term of employment, from the recruitment process until the termination of employment. They are generally presented in connection with other employment-related claims and normally relate to a claimant not being appointed to a certain position, not receiving a certain benefit or being made redundant, on allegedly discriminatory grounds.
If the employee presents concrete facts, based on which it can be assumed that discrimination has occurred, the employer must prove there has been no discrimination in order to avoid liability. This lowering of the claimant’s standard of proof, known as the presumption of discrimination, is only applied in civil cases.
The outcome of discrimination cases is generally difficult to predict, as the cases often comprise many issues of fact and mainly rely on the evidence presented in the matter. Ultimately, the matter will be subject to an overall assessment by the court.
Case Law
The Finnish Supreme Court quite regularly assesses the concept of justified reasons allowing deviation from the employer’s equality obligations. However, as most of the judgments provide reasons that cannot be considered justified, there is very little case law to suggest reasons that may potentially be justified. Consequently, drawing the line between adequate and inadequate reasons for differential treatment has proven difficult in practice.
Sanctions
An employee who has been discriminated against is entitled to compensation, the maximum amount of which is affected by, among others, the type and extent of the discriminatory behaviour, its duration and overall circumstances. The employee can also claim damages for pecuniary loss. Payment of the above compensation does not prevent the employee from seeking compensation based on other legislation.
Discrimination in employment may also constitute a crime punishable with up to six months’ imprisonment.
If the employee is terminated on discriminatory grounds, he will also be entitled to compensation for unjustified termination of employment based on the Employment Contracts Act.
Practical Advice
Although not mandatory, employers are recommended to have a discrimination policy. This will ensure that the employees are aware of the operating principles of the work community and also avoid unnecessary allegations of discrimination.
Overall Reform of Finnish Equality Legislation
An overall reform of Finnish equality legislation is currently in progress, with the aim of making all grounds of discrimination subject to the same legal remedies and consequences. A draft government proposal regarding the reform was issued to the Parliament in April 2013.
For more information on employment law issues in Finland, Seppo Havia and Jessica Brander can be contacted at seppo.havia@dittmar.fi and jessica.brander@dittmar.fi. You can also visit the Dittmar & Indrenius website: www.dittmar.fi
