Summary of reports concerning the partial reform of the Non-Discrimination Act (VN/3528/2021) (TAS 159/2022, issued on 19th May 2022)

The Ministry of Justice requested the Ombudsman for Equality to issue a statement on the partial reform of the Non-Discrimination Act. The request for a statement includes the draft government proposals for the amendment of the Non-Discrimination Act, Act on the National Non-Discrimination and Equality Tribunal and Act on the Non-Discrimination Ombudsman. 

In line with the powers of the Ombudsman, the Ombudsman for Equality comments on the partial reform of the Non-Discrimination Act from the perspective of gender equality. In the statement, the Ombudsman for Equality has also taken into account the differences between the Act on Equality Between Women and Men (Equality Act) and the Non-Discrimination Act, as well as the observations based on the Ombudsman's monitoring duties which could have significance with regard to the reform of the Non-Discrimination Act.  

This summary includes some of the issues discussed in the Ombudsman for Equality's statement. The Ombudsman for Equality’s full statement in Finnish is enclosed (PDF) and available through the public statement service (lausuntopalvelu.fi).

Compensation

A number of arguments speak for giving the Tribunal the power to order the payment of compensations. The arguments in favour of this are mainly related to the practical impediments to bringing action in the courts (the legal expense risk in particular). Safeguarding the conditions for a fair trial would be important in a procedure in which the payment of compensations would be ordered by the Tribunal. At the same time, the role of the Tribunal as a low-threshold recourse should also be preserved. It is important to ensure a clear division of powers between the courts and the Tribunal. 

Bringing matters to the Tribunal

According to the draft government proposal, a matter involving compensation could be brought to the Board by the victim of discrimination or reprisals and the Non-Discrimination Ombudsman. The Non-Discrimination Ombudsman would require the injured party's consent. The Ombudsman for Equality finds this proposal commendable. 

At the same time, the Ombudsman for Equality would like to remind that a person suspecting discrimination based on gender does not have a corresponding right under the current Equality Act. The Ombudsman for Equality has discussed issues related to the enhancement of the legal protection of individuals in the Ombudsman's report to Parliament (KK 1/2022 vp., . 36). The Ombudsman for Equality considers it important to also examine the development needs concerning the legal protection of victims of gender-based discrimination. 

If the National Non-Discrimination and Equality Tribunal is granted the proposed power to order the payment of compensations based on violations of the Non-Discrimination Act, the Ombudsman for Equality considers it important to swiftly examine whether the Tribunal should be given the power to also order the payment of compensations based on violations of the Equality Act, taking into account the issues brought forward by the Ombudsman for Equality in the Ombudsman's report to Parliament (K 1/2022 vp, pp. 28–29). Among other things, the Ombudsman for Equality has considered that the scope of compensations should be expanded to also cover conduct before the start of the employment relationship. 

The Ombudsman for Equality considers it important to consider the legal remedies available in discrimination matters more comprehensively. For example, various types of class action should be included in the examination. The Ombudsman for Equality has discussed issues related to legal protection under the Equality Act in the Ombudsman's report to Parliament (K 1/2022 vp).  

Claiming compensation in a criminal procedure involving workplace discrimination

Several reports on the application of non-discrimination legislation have drawn attention to the fact that, in criminal procedures concerning discrimination, damages for anguish are often claimed and ordered instead of compensation. The recommendations of the Personal Injury Commission on the amounts of compensation for anguish are smaller than the respective compensations. 
The Ombudsman for Equality would find it extremely welcome if the Ministry of Justice, which has expertise in procedural law, would conduct a study of whether matters concerning compensation under the Equality Act and Non-Discrimination Act could also be processed in connection with a criminal procedure. 

Possible challenges 

The division of powers with regard to ordering compensation may cause confusion in those suspecting discrimination regarding the institution with which they should institute their compensation claim. The situation may be particularly problematic in cases of 'cumulative discrimination', in which one of the bases for discrimination is gender, because the Tribunal would not have the power to order compensation for discrimination based on gender even after the reform.

Those suspecting discrimination should have access to advice and counselling before a possible Tribunal hearing. The Non-Discrimination Ombudsman must be allocated the resources to provide such services in connection with the proposed reform.

Distribution of powers between the district courts and the National Non-Discrimination and Equality Tribunal in compensation claims

In the opinion of the Ombudsman for Equality, it appears justified to give the National Non-Discrimination and Equality Tribunal the power to order the payment of compensations for violations of the Non-Discrimination Act as proposed. The draft government proposal explains well how a tribunal procedure would lower the threshold for claiming compensation and eliminate the expense risk. This would improve the legal protection of discrimination victims. 

In the opinion of the Ombudsman for Equality, the current restriction provided for in the Non-Discrimination Act, according to which the Non-Discrimination Ombudsman and National Non-Discrimination and Equality Tribunal do not have the authority to process suspected discrimination involving working life, is not appropriate. Discrimination victims may have even more trouble understanding the powers of the various authorities if the Tribunal will in future only have the power to order the payment of compensation for discrimination not related to working life.

The Ombudsman for Equality has regularly conducted or commissioned studies on the practices of applying the provisions of the Equality Act and the prohibitions of gender-based discrimination provided for in the Criminal Code. According to these studies, practically all civil cases involving gender-based discrimination heard in the ordinary courts concerned working life. It should be noted that, in several cases, in addition to the payment of compensation, the District Court also ordered compensations under the Non-Discrimination Act, compensation for groundless termination of an employment contract by virtue of chapter 12, section 2 of the Employment Contracts Act, as well compensation for loss of income, pay for the period of notice or loss of the annual holiday bonus. Some cases involved multiple discrimination, that is, discrimination on another basis, such as age, in addition to gender.  This should be taken into account if the intention is to permit the National Non-Discrimination and Equality Tribunal to also process claims for compensation for workplace discrimination in the future.

Intersectional discrimination 

In connection with the legislative reform of 2015, the Ombudsman for Equality considered it important that the Ombudsman should also have authority over cases of intersectional discrimination in which gender is one basis for discrimination. At present, the Non-Discrimination Act applies to intersectional discrimination cases, even when gender, gender identity or gender expression is one of the elements of intersectional discrimination. This significantly restricts the Ombudsman for Equality's capabilities to monitor discrimination and promote equality – especially as the intersectional perspective is being increasingly emphasised in the public debate and, potentially, legislation (e.g. the European Commission's proposal for a directive on pay transparency). The Ombudsman for Equality thus considers it important that the Ombudsman should also have authority in cases of intersectional discrimination in which gender is a factor.

Harassment

The Ombudsman for Equality finds the amendment to the concept of harassment in the Non-Discrimination Act to also include harassment of groups of people to be justified. In the opinion of the Ombudsman for Equality, the legal protection of discrimination victims requires improvement especially in cases involving the bases for discrimination prohibited under the Non-Discrimination Act, mentioned as problematic in the draft government proposal, in which the Non-Discrimination Ombudsman has been unable to bring the case to the National Non-Discrimination and Equality Tribunal.

The expansion of the powers of the Non-Discrimination Ombudsman and Tribunal

The government proposal does not propose granting the Non-Discrimination Ombudsman the power to monitor compliance with the Non-Discrimination Act in working life. Rather, this would remain as the duty of the occupational health and safety authorities. However, the Non-Discrimination Ombudsman is a special authority whose duties are integrally related to the implementation of the Non-Discrimination Act and the promotion of non-discrimination. The activities of the Non-Discrimination Ombudsman – and the Ombudsman for Equality – are founded on fundamental and human rights. The Non-Discrimination Ombudsman has accumulated solid and diverse special expertise on questions of discrimination on various bases, including questions related to working life. The Ombudsman for Equality has thus been in favour of giving the Non-Discrimination Ombudsman and National Non-Discrimination and Equality Tribunal powers to also enforce the prohibitions of discrimination in working life and the obligations to promote non-discrimination.

As such an expansion of the Non-Discrimination Ombudsman's and Tribunal's powers is not being proposed, the Ombudsman for Equality considers it important to improve cooperation between the occupational health and safety authorities and the Non-Discrimination Ombudsman. 

Duties and powers of the Non-Discrimination Ombudsman

The Ombudsman for Equality considers it important that, as a rule, the occupational health and safety authorities would request a statement from the Non-Discrimination Ombudsman in all cases involving the Non-Discrimination Act. Due to the nature of many suspected cases of discrimination, the Non-Discrimination Ombudsman's statement could be significant with regard to the legal protection of the individual suspecting discrimination if they should decide to, for example decide to claim compensation from their employer later.  

However, the necessity of issuing a statement in each individual case should be left to the discretion of the Non-Discrimination Ombudsman. It is also important to provide the Ombudsman with sufficient resources and access to information in each individual case.

 

23.05.2022