Assigning tasks that include physical restraint to male employees (TAS 176/2023, issued on 5.6.2023)
A has requested the Ombudsman for Equality to review if tasks have been assigned in a manner based on gender and in breach of the Equality Act at a State-owned residential unit of child welfare services. A has stated that there was a silent agreement at the work place according to which men were responsible for tasks including restraint, restriction and placing in isolation. The male employees have pointed out that dividing tasks by gender does not come across as present-day policy.
In accordance with the legislative materials of the Equality Act, the management of work includes, among other things, the organisation of activities and the development of an employee's tasks and professionalism. Dividing work tasks so that employees of one gender are assigned more monotonous and dull tasks than the employees of the opposite sex in the same position, or that the opportunity for overtime is only offered to employees of one gender. The distribution of duties is especially significant when the nature of an employee's duties determines their possibilities for advancing to new, better-paid positions.
The employer is tasked with developing working conditions to ensure they are suitable for both women and men. It is the employer's duty to promote equality at management level. Discriminating management can be demonstrated in many ways. When telling apart permitted and forbidden measures, attention must be paid to the prevailing non-discriminating policy or practice.
Assessment of the case
n its statement, the employer highlighted the importance of safety aspects. According to the employer, the goal is to ensure a sufficient employee resource and, when needed, to prioritise that there is staff in the different wards to ensure daily routines go well and safety is guaranteed. It is pointed out in the statement that the work place does not have a culture of women not participating in tasks involving physical restraint. According to the employer, it is natural that some instructors have a better competence for challenging situations while some need more help from their co-workers. Some employees ask the male employees to become involved in challenging situations, and these situations have been discussed at ward meetings. Staff training has also been offered. The statement notes that it is, however, an inevitable fact and a law of nature that men are usually physically stronger than women and their appearance can help to secure the situation.
A has pointed out that the tasks of the instructor are the same for all, but in practice the tasks including physical restraint are assigned to the men. The screenshots attached to A's rejoinder indicate that men have been repeatedly requested to take shifts and to visit other wards during the shift. The Ombudsman for Equality also took notice that women miss the opportunity to earn added compensation if only men are asked to work certain shifts.
The dangerous or uncomfortable nature of the work, for example, is not a justified or acceptable reason for gender-based restrictions. On the other hand, the fact that the law specifically forbids using women for certain duties does constitute a justified and acceptable reason. Therefore, the references made in the employer's statement to a fact and law of nature regarding the physical strength of men and the safety aspect are not an acceptable reason to request men to take certain shifts or be present in the situations.
In the opinion of the Ombudsman for Equality, the employer did not have acceptable grounds to assign the tasks concerning using physical restraint to men alone, id est to divide tasks based on gender. The Ombudsman for Equality urged the employer to ensure that, going forward, tasks would not be distributed on the basis of gender without an acceptable reason. The employer must ensure that the working conditions are equally suitable for women and men. The employer must therefore ensure that both men and women can do all the tasks of an instructor, including the situations that require physical restraint. Employees must also be informed that not only men will be asked to take shifts or that help is not asked only from men.
19.06.2023
