Filling positions in the Finnish Border Guard without an open application procedure must not restrict the rights of those suspecting discrimination (TAS 220/2023, issued on 11 May 2023)

The Ombudsman for Equality was asked for a statement on the government proposal for acts amending the Border Guard Act and the Act on the Administration of the Finnish Border Guard. Among other things, the proposal suggested that certain civilian positions in the Border Guard that are important for national defense could, in some cases, be filled without an open application procedure. In special circumstances, cadets studying at the Border and Coast Guard Academy could be appointed to extracurricular duties, and cadets could be given fixed-term appointments to military offices if necessary. The Ombudsman for Equality found some of the suggestions problematic in terms of the Act on Equality between Women and Men (Equality Act).

The public filling of positions is important with regard to gender equality and legal protection. Filling positions without a public recruitment process would affect the legal protection of people who would have been interested in the position but were not able to apply. The Equality Act prohibits discrimination in recruitment also when the position is filled without an open application procedure. Individuals who have participated in the recruitment process can invoke the Equality Act's provisions on discrimination. Simply expressing an interest in the position can make one eligible to invoke these provisions. In the Ombudsman for Equality's view, the proposal may not curtail the legal protection and possibility for redress of those who suspect discrimination.
According to the proposal, a person suspecting discrimination could complain to the Ombudsman for Equality, among others. The Ombudsman can express their opinion on whether the appointment was made in compliance with the Equality Act, but does not have the power to change appointments to office. 

In order to bring a matter to court, the person suspecting discrimination must be able to prove that they would have been more suitable for the position than another person of the opposite gender appointed to it.

For this purpose, the person suspecting discrimination has the right to obtain information on the selection criteria and the appointee's education and work experience from the employer as provided for in the Equality Act. The Ombudsman for Equality considers it necessary that those suspecting discrimination have access to the materials required for bringing the matter to court if necessary.

According to the proposal, a cadet studying at the Border and Coast Guard Academy could, in the event of a serious crisis, be given a fixed-term appointment to military office even if they do not meet the eligibility criteria. Cadets serving in such office would have full powers. The fact that short, fixed-term positions can be filled without an application process and the recruitment decision is not open to appeal, compounds the problematic nature of the proposal. The Ombudsman for Equality notes that the proposal involves some of the same problems as filling civilian offices without an application procedure. A careful assessment of gender impact must be conducted of the proposal in the further preparation of the amendments.

The Equality Act obligates the authorities to promote gender equality in all their activities. UN Resolution 1325 on Women, Peace and Security, which is binding on Finland, also requires questions of security to be examined from the perspective of gender equality. According to the Finnish Border Guard's gender equality and equality promotion plan for 2021–2022, a large majority, that is 85%, of Border Guard staff is male. From the perspective of employee gender distribution, filling positions without opening them for applications is a worrying development that could jeopardise the achievement of the Finnish Border Guard's gender equality objectives.

The Ombudsman for Equality considers it important that the impact of the draft proposal be taken into account in the future strategies and gender equality and equality promotion plans of the Finnish Border Guard.

19.05.2023