3 Discrimination
3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
Employees are protected against discrimination. It is prohibited to discriminate against employees on grounds of ethnicity, race or ethnic origin, national or social background, gender, skin colour, state of health, disability, faith or conviction, age, sexual orientation, family status, membership of unions, financial standing or other personal circumstance.
3.2 What types of discrimination are unlawful and in what circumstances?
See above.
Both direct and indirect discrimination based on any aforementioned personal circumstances are prohibited. Less favourable treatment of employees in connection with pregnancy or parental leave is also deemed to be discrimination. The law puts a special emphasis on the prohibition of sexual harassment and bullying as forms of discrimination. Discrimination is prohibited throughout the employment relationship, even candidates enjoy the same protection against discrimination as employees. Equal treatment must be ensured especially in employment, promotion, training, education, retraining, pay and other receipts from the employment relationship, working hours and cancellation of employment contracts.
3.3 Are there any defences to a discrimination claim?
Differing treatment based on any personal circumstance set forth in question 3.1 shall not constitute discrimination if, owing to the nature of the work or circumstances in which the work is performed, a certain personal circumstance might represent a significant and decisive condition in respect of the work and such a requirement is in proportion to and justified by the legitimate objective.
3.4 How do employees enforce their discrimination rights?
Can employers settle claims before or after they are initiated?
Should any employee think that the employer has violated any of his rights arising from their employment relationship, i.e. that he/she has been discriminated against, he/she shall have the right to request in writing that the employer abolishes the violation. Should the employer not abolish the violation within eight working days upon the receipt of the employee’s written request, the employee may seek judicial protection before the competent labour court within 30 days from the expiry of the time limit stipulated for the abolishment of the violation by the employer. The claims can be settled before they are initiated and any time during the court procedure. Regardless of the settlement, the Labour Inspector may further investigate a claim against an employer’s liability for discrimination.
3.5 What remedies are available to employees in successful discrimination claims?
At an employee’s request, a court can order an employer to take back any discriminatory measure. The employees can also demand and be awarded a financial compensation for discrimination. Discrimination claims are not very common in our country; however, recently a number of claims regarding sexual harassment and mobbing has increased.
3.6 Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
Atypical workers have no additional/special protection. Part-time employees must give their written consent to overtime hours in their employment contracts, otherwise the employer cannot demand any overtime work from such employees.
SOURCE: Employment & Labour Law 2012, ICLG
Authors: Miha Mušič, Vladka Plohl