Labour market training that is aimed only towards women (TAS 531/2018, issued on 7 June 2019)
The Ombudsman for Equality was asked to investigate whether the selection criteria of a labour market training programme complied with the Act on Equality between Women and Men (609/1986, hereinafter the Equality Act) when one of the criteria for being accepted to the programme was being female. In addition, the Ombudsman for Equality investigated whether the procedures used by company X in the employment process done after the labour market training complied with the Equality Act.
The case centred around labour market training that had been implemented in the form of a joint purchase training programme that the ELY Centre had procured together with company X. The TE Office selected the trainees for the programme after hearing company X. According to company X, the objective of the training was to have at least 80% of the trainees be employed by the company after the end of the programme.
Based on the report submitted by company X, the labour market training was a special measure that was planned and temporary in nature and whose purpose was to promote the actual gender equality of the company in question. The objective of the training was to encourage women to apply to a male-dominated field. The report also stated that aiming a training programme to women does not prevent men from applying to work for the company and that completing the programme was not a prerequisite for working at the company.
Assessment of the case
Selection criteria for the labour market training
The first part of the case centred around the question of whether the selection criteria for the labour market training complied with the Equality Act, when one of the selection criteria of the training in question was being female.
According to section 8 b of the Equality Act, the action of an educational institution or any other body providing training or education shall be deemed to constitute discrimination prohibited under the Equality Act if a person is treated less favourably than others on the basis of gender in student selections. The Ombudsman for Equality noted that, on the basis of the preparatory work done for the Act (HE 195/2004 vp), the scope of application of section 8 b of the Equality Act is fairly broad and can be considered to also apply to training that is arranged as labour market training. The trainee selections made by the TE Office were thus evaluated on the basis of section 8 b of the Equality Act.
When the nature and purpose of the labour market training programme are taken into account, the Ombudsman for Equality felt that, in addition to the TE Office, it was likely that company X had also played a key role in the selection of the trainees. The Ombudsman for Equality noted that, insofar as the employer has participated in the trainee selection process, the matter must be evaluated on the basis of section 8 (1) (1) of the Equality Act. According to the provision in question, the action of an employer shall be deemed to constitute discrimination prohibited under the Equality Act if the employer, upon selecting someone for a particular training, bypasses a more qualified person of the opposite sex in favour of the person chosen, unless the employer’s action was for an acceptable reason and not due to gender, or unless the action was based on weighty and acceptable grounds related to the nature of the job or the task.
The Ombudsman for Equality noted that regardless of which party can be considered responsible for the trainee selection process and how the provision of the Equality Act is to be applied, the implementation of the labour market training must be evaluated on the basis of section 9 (4) of the Equality Act. According to section 9 (4) of the Equality Act, temporary, special actions based on a plan and which are for the purpose of promoting effective gender equality and are aimed at implementing the objectives of the Equality Act shall not be deemed to constitute discrimination based on gender.
The Ombudsman for Equality felt that the labour market training in question that was aimed towards women could be considered to constitute a positive special action that meets the criteria specified in the aforementioned provision and is compliant with the Equality Act. The training did not constitute a continuous operating policy but a plan-based special action whose aim is to implement the objective of the Equality Act. The Ombudsman for Equality emphasised that the labour market training in question promotes the equality between women and men by improving the status of women in working life and by helping to decrease the gender divisions present in the labour market. Therefore the trainee selection criteria did not, according to the opinion of the Ombudsman for Equality, contradict the Equality Act.
Employment process after the labour market training
The second part of the case focused on the question of whether the employer had acted in a manner that was compliant with the Equality Act when they made their employment decisions after the labour market training.
The Equality Act allows for positive special actions that must be interpreted in a manner that is compliant with EU law. In its legal practice, the Court of Justice of the European Union has deemed that positive special actions are compliant with EU law as long as primacy is not given automatically and unconditionally to an applicant of an underrepresented gender when making the employment selection.
Company X stated that the completion of the labour market training programme did not guarantee trainees with automatic employment in the company. According to the report, the company needs to hire 51 new employees, and completing the labour market training programme would provide the participants with the necessary skills that, should all the prerequisites be met, they could be employed to an open position in the company. According to the report, the rest of the 40 or so open positions will be filled using a traditional recruitment process that will be open to all applicants.
On the basis of the report that was submitted on the matter, it remained somewhat unclear how the 11 open positions that would be excluded from the traditional recruitment process would be or have been filled. The Ombudsman for Equality stated that the process used by company X would be contrary to the Equality Act in the case that the trainees are or were employed automatically after completing the labour market training for women. If the women who successfully complete the training are directly selected for employment, it would result in a situation where their gender would practically constitute an automatic selection criterion. In such cases, the employer could become guilty of a procedure that violates section 8 (1) (1) of the Equality Act, i.e. discrimination in recruitment.