Statement on the draft Government proposal for an act amending the Act on Equality Between Women and Men (increasing pay transparency) (TAS 207/2022, issued on 2 June 2022)
The Ombudsman for Equality issued to the Ministry of Social Affairs and Health a statement on the draft Government proposal to increase the openness of pay information in the Act on Equality between Women and Men.
Right of access to pay information in cases of pay discrimination
In the Ombudsman for Equality's view, any employees suspecting pay discrimination should have better opportunities to have access to the pay information of their peer employees than they have today. This would make it possible to examine pay discrimination situations at the workplace. Improved access to pay information would make it easier to detect pay discrimination and address it. It would also probably prevent pay discrimination and promote pay equality at the workplace.
The Ombudsman for Equality finds the proposed model, in which an employee would receive pay information primarily from the employee representative and, secondarily – if the workplace lacked an employee representative – from the Ombudsman for Equality, somewhat problematic. The employee may not be a member of a labour union or he or she may be a member of a union not represented by the workplace's shop steward. In such a case, the workplace would have an employee representative as referred to in the act, but he or she would not necessarily pursue the case of the employee suspecting pay discrimination. There may also be other reasons why the employee representative would be unwilling to request the pay information from the employer. For example, he or she may represent another employee in the peer employee's position or be a peer employee him- or herself.
The Ombudsman for Equality does not support the procedure in which the information could be requested through the Ombudsman for Equality if the workplace lacked an employee representative. In practice, the Ombudsman for Equality would thus act as a "post office" that would request the pay information from the employer and forward it to the employee. In the opinion of the Ombudsman for Equality, this would mean using the Ombudsman's resources for a purpose entirely other than that for which they were intended – in other words, for supervising compliance with the Act on Equality between Women and Men, promoting the implementation of the Equality Act’s intention and other duties under the Act on the Ombudsman for Equality.
In the Ombudsman for Equality's view, an employee suspecting pay discrimination should, in all situations, receive the pay information directly from the employer, as proposed in the report of the tripartite working group for promoting pay transparency (Reports and memorandums of the Ministry of Social Affairs and Health 2021:27). If this option is ruled out, the proposed provision should state that employees have the right to receive the information directly from the employer if the workplace lacks an employee representative or if the employee representative refuses to request the pay information from the employer or to hand them over to the employee suspecting pay discrimination.
Processing of pay information in pay surveys
The proposed provision states that, in order to ensure the comprehensive comparison of pay or to determine the reasons for pay differences, employers should give employee representatives access to individual employees’ pay information requested by the representatives in connection with the pay survey.
The Ombudsman for Equality is in favour of the proposal. Based on the observations made by the Ombudsman when supervising compliance with the law, quite a large proportion of employees have often been excluded from the pay survey, evidently to avoid the individual employees’ pay information from being revealed. Furthermore, often the reasons for pay differences are not explored at all. The amendment would clarify the processing of pay information during the pay survey process.
The employer's duty to give an account of the pay system
The draft Government proposal proposes adding a provision to the Equality Act, according to which, once a year, the employer should give the employees an account of, for instance, the pay system applied by the employer and its application.
The Ombudsman for Equality considers it important to increase the employees' pay knowledge, the pay system applied at the workplace and its application being an essential part of it. In the Ombudsman for Equality's opinion, the Act on Equality between Women and Men is not the right place for the proposed duty, as it applies also to fair and equal treatment other than gender equality. Therefore, the Ombudsman for Equality proposes that the duty be included in the Employment Contracts Act and other employment relationship legislation.
03.06.2022
