Statement to the Ministry of Social Affairs and Health on the draft Government action plan for gender equality 2024–2027 (VN/27297/2023, issued on 10 October 2024)

The Ombudsman for Equality appreciates that the current government is continuing the tradition of previous governments in drawing up an action plan for gender equality as an expression of equality policy, priorities and will. The government action plan for gender equality 2024–2027 is based on Prime Minister Orpo's Government Programme. The action plan summarises the Government's measures to promote gender equality. Unfortunately, the plan shows that many of its measures are not very concrete, and not necessarily all of them are even likely to promote gender equality. The plan also lacks measures to further the position of gender minorities. Below is a summary of some of the key observations. The Ombudsman for Equality has commented on the whole action plan in a statement, which can be read in full in Finnish in the appendix and at Lausuntopalvelu.fi.

Promoting equal pay 

The equal pay programme agreed for 2024–2027 sets a target of reducing the pay gap between women and men to a maximum of 14.5% between 2024 and 2027. As equal pay is a basic human right, narrowing the pay gap by just over two percentage points from the current level of around 16.6% is not a very ambitious goal.  

Measures under the equal pay programme focus on pay systems and pay awareness, equality planning in the workplace, tackling gender segregation and reconciling work and family life. The programme also includes discussions between private sector unions on possible participation in equal pay schemes. Measures to close the pay gap under the equal pay programme seem more like pious hopes than concrete action. 

Leila Kostiainen has reviewed the previous equal pay programme 2020–2023. She recommended, among other things, that an economic impact analysis would be carried out to examine the effects of equal pay programmes, legislative changes, economic cycles, structural changes in the labour market and labour market measures on changes in the average gender pay gap. Prime Minister Orpo's Government Programme mentions that the Government would commission a study but, for some reason, this is not mentioned in the measures of the action plan for gender equality. The Ombudsman for Equality considers it important that this study be carried out as soon as possible.  

Strengthening equal pay by EU directive 

The Ombudsman for Equality considers it important that the European Union Directive (EU) 2023/970 on strengthening equal pay for men and women through pay transparency and enforcement mechanisms is properly implemented in Finland. The Ombudsman regrets that the directive is mostly known for its part in pay transparency, but the other important element of the directive, the development of pay systems, is less well-known. This is also reflected in the fact that the directive is mistakenly referred to as 'the Pay Transparency Directive'.  

The Ombudsman for Equality considers that the minimum implementation of the directive should include the need for employers to have pay structures that ensure that the same pay is paid for the same work or work of equal value. Enshrining this principle in legislation is an important step in promoting equal pay. By improving the evaluation of the degree of difficulty of work in pay systems, the pay gap between men and women can be reduced, even at no extra cost to employers, as changes to pay are made within the system.  

Pregnancy and family leave discrimination must be tackled with legislation  

According to the action plan on gender equality, more effective measures will be taken to tackle discrimination in pregnancy and family leave. On 13 December 2023, the Ministry of Social Affairs and Health appointed a tripartite working group for this purpose (project number STM095:00/2023). The Ombudsman for Equality considers it justified that amendments to the legislation are prepared under the leadership of the Ministry of Social Affairs and Health so that the prohibition of discrimination under the Equality Act is specified with regard to discrimination in pregnancy and family leave. The Equality Act should therefore clearly reflect existing case law on the protection of temporary workers against termination of employment due to pregnancy or family leave.  

The position of temporary agency workers has emerged as a particular problem in the work of the Ombudsman for Equality. Agency workers are employed by labour hire agencies, but their actual employment depends on the user company that has a contract with the labour hire agency. If a user company does not select someone from the pool of workers because of pregnancy, that company is not liable for compensation under the Equality Act. The user company can be considered to have violated the general prohibition of discrimination under section 7 of the Equality Act, but the violation cannot be sanctioned by having to pay compensation under the act, which is only a consequence of the prohibitions imposed on the employer by sections 8–8e of the act. The Ombudsman for Equality believes that the legislation should be changed to put temporary agency workers on an equal footing with other workers in terms of protection against discrimination. The compensation sanction must be extended to the user company where the discriminatory conduct of the company actually contributes to the termination of the employee's employment. 

Sexual harassment 

In the 2005 reform of the Equality Act, the harassment provisions were amended, mainly because of the EU Equality Directive. At that time, explicit reference to harassment was removed from section 6 concerning the obligations of employers to promote equality, as the employer was under a general obligation to prevent discrimination. This obligation, the current section 6, subsection 2, paragraph 6, is considered to include an obligation to prevent harassment. In the opinion of the Ombudsman for Equality, the understanding of the scope of this obligation is not sufficient and the obligation to prevent harassment should be explicitly mentioned in the Equality Act. Harassment should be mentioned in section 6, which is mandatory for all employers, and as part of employers’ equality planning obligations under section 6a. 

The Ombudsman for Equality has also drawn attention to the need to improve the legal protection of victims of harassment. The current situation and access to justice for victims should be examined, and the resulting report should be used to assess the need for changes. 

Investigating the effectiveness of the Equality Act 

In its report to Parliament in 2022, the Ombudsman for Equality recommended a study of the effectiveness of the Equality Act and proposed a number of measures to facilitate access to rights for victims of discrimination and to develop the Ombudsman’s powers to match those of the Non-Discrimination Ombudsman. 

The Ombudsman for Equality has proposed that they would be given an independent right of action in discrimination disputes based on the Equality Act. Many discrimination claims involve the public interest in obtaining a judicial decision clarifying the interpretation of the law, so a right of action for the Ombudsman would be necessary. 

Non-discrimination cases are often collective. Need for redress on a single issue can apply to a wide range of people. In this case, an individual action is not in principle the best way to deal with a discriminatory situation, but it would be good if the Ombudsman had the right to bring an action in their own name in disputes concerning the application of the Equality Act. 

Often, discrimination is not based on just one factor but may be linked to several different ones. Other factors, together with gender, can contribute to experiences of discrimination prohibited under the Equality Act. For example, women, young people, people from minority groups and people on low incomes are more likely than others to experience sexual harassment, which is prohibited by the Equality Act. Situations where gender, in combination with other factors of inequality, leads to discrimination are called intersectional discrimination.  

According to the explanatory memorandum of the Equality Act, the Ombudsman for Equality cannot deal with allegations of discrimination based on intersectional discrimination, even if gender is an essential element of that discrimination. This limits the possibility of the Ombudsman for Equality to address important and topical issues of gender equality.  The Ombudsman for Equality has therefore suggested that the exclusion of intersectional discrimination from the powers of the Ombudsman be re-evaluated. 

The Ombudsman for Equality has considered it important that those who have experienced discrimination also have access to low-threshold legal channels through which legal protection can be determined and decided without high-cost risk and longer processing times. The Ombudsman for Equality has suggested that the possibility of developing the National Non-Discrimination and Equality Tribunal as a low-threshold body of legal protection to which individuals could take their case to be examined should be explored. At the same time, it should be examined whether the tribunal could also order the payment of compensation.

14.10.2024