Equal treatment

Last updated: 16.09.2024

An employer shall ensure the protection of employees against discrimination.
The remuneration agreed on between the employee and the employer shall not depend solely on the employee’s gender.
The principle of shared burden of proof applies in discrimination disputes.

Equal treatment

An employer shall ensure the protection of employees against discrimination, follow the principle of equal treatment and promote equality in accordance with the Equal Treatment Act and Gender Equality Act (section 3 of Employment Contracts Act).

The purpose of the Equal Treatment Act is:

to prevent discrimination of persons on grounds of nationality (ethnic origin), race, colour, religion or other beliefs, age, disability or sexual orientation;
introduce an obligation to promote the principle of equal treatment (i.e. the desire for the organisation’s staff to reflect the diversity in society);
ensure legal protection for those discriminated against.

According to the Equal Treatment Act and the Gender Equality Act, an ‘employee’ means a person employed under an employment contract or a contract for the provision of services, an official or any other person set out in section 2 of the Public Service Act. Persons applying for employment or service are also deemed to be employees; ‘Employer’ means a natural or legal person who provides employment on the basis of an employment contract or a contract for the provision of services, or a state authority or a local government authority.

Employer as a person implementing and promoting the principle of equal treatment:

Shall take measures to prevent discrimination against employees;
Shall notify employees about the rights and obligations provided in the in Equal Treatment Act.

Examples of discrimination:

A man is not allowed to enter a bar because of the dark colour of his skin
A job advertisement states that only persons of a certain age are sought for the job
A preschool fires a teacher because he is a Jehovah’s Witness.
An employer does not take any measures to enable a disabled employee to participate in the work or receive training.
A female teacher is told that she cannot hold hands with her female partner on the street if she wants to continue working at the school.

Flexible working arrangements

An employee has the right to request opportunities for reconciliation of work and family life, including flexible working arrangements from the employer. For example, flexible working conditions mean the possibility for employees to adapt their organisation of work (use telework opportunities, work outside usual working hours etc) or to reduce the number of working hours and work part-time. The employer must respond to the request for flexible working conditions within a reasonable period of time. The reasonable period of time is determined by the urgency of circumstances. For example, a reasonable time is shorter in a situation where the employee suddenly becomes aware of unexpected circumstances concerning their private life (e.g. unexpected change in child's school arrangements) compared to a situation where the employee knows in advance about the changes in their living arrangements (e.g. planning ahead working arrangements before going on maternity leave).

If the employer is not able to provide flexible working conditions, they should offer the employee alternative solutions. If alternative solutions for reconciling work and family life are not objectively possible due to the organization of work then the employer must provide a reasoned explanation to the employee as soon as possible, but not later than within 15 working days. The explanation should indicate why the request can’t be granted.

Ensuring equal treatment of women and men in working life

The requirement of equal treatment of men and women applies to all of the following aspects and activities of working life pursuant to the Gender Equality Act:

recruitment or selection for a position (i.e. the principle of equal treatment shall be taken into account before formally commencing the employment relationship);
promotion;
sending to training or courses;
remuneration for work, including also ensuring equal treatment for the same or equivalent work in terms of bonuses and other benefits or pecuniary advantages (company car, fuel compensation, use of mobile phones, payment for training, free parking). Remuneration is paid according to the work and its value, not the employee’s person. The person performing the work cannot influence the size of the remuneration. However, the size of wages may be affected by the length of a person’s experience, qualifications (diplomas, academic degree), work performance (which shall be measurable), etc.

In order to ensure equal pay for women and men, it is a good idea to use a gender-neutral method of analysis to evaluate jobs. For example, the value of work performed in a specific position can be calculated as follows: 20–35% of the total value of the work is comprised of the required qualification (e.g. academic or vocational education attested by a diploma; previous work experience; non-formal training; voluntary work; professional knowledge; proficiency; communication skills, etc.), 19% is the effort required to perform the work (physical, mental, emotional), 25–40% is responsibility (e.g. whether the employee has subordinates or major responsibility for material assets, etc.) and 5–15% the conditions in which the work is performed (e.g. noise, tight deadlines, cold rooms, a lot of communication and human contact, etc.).

Work management, division of duties (e.g. it should not be assumed that a male employee or public servant can handle more complex tasks, etc.) and working conditions.
Disciplinary action, transfer to another job, cancellation of the employment relationship or facilitation thereof.
In addition, an employer shall protect its employees from sexual and gender-based harassment.

An employer has the duty to provide an explanation (section 7 of the Gender Equality Act) if a person finds that he or she has received unequal treatment due to his or her sex:

In the course of recruitment, promotion, task assignment, selection for training – a written explanation shall be given to the person within 10 days, indicating the length of service and education of the selected person, his or her work experience and other skills or reasons which give the person a clear advantage.
In the case of remuneration and harassment, imposition of disciplinary sanctions (list in subsection 6 (2) of the Gender Equality Act) – within 15 days

Gender equality means equal rights, obligations, opportunities and responsibilities for women and men in all areas of society, including working life.

The obligation to promote gender equality means that:

the applications and recruitment of both men and women are supported
both genders are recruited and promoted as equally as possible. However, this does not mean that the best candidate is cast aside or that the recruitment criteria are set in such a way that representatives of one gender are in a favourable position.
working conditions (working hours, premises, etc.) are designed to be suitable for both genders (this also means that employees are allowed to balance work and family life, e.g. through flexible working hours, teleworking, regulating working hours so that employees with children can pick up their children from the preschool in the evening, etc.)
sexual harassment is prevented in the workplace.
employees are informed of their rights and the state of equality in the organisation (i.e. collection and analysis of data collection).

In order to be able to promote gender equality in an organisation, one must be aware of the situation of women and men in the organisation. However, this requires regular and systematic data collection and analysis. High-quality data is the basis for assessing gender equality in an organisation.

The differences between women and men should be compared:

in the performance of management functions
regarding different levels of remuneration (annual gross income, components of additional income)
in part-time and full-time employment
with regards to qualifications (highest level of education completed, additional qualifications acquired)
regarding in-service training based on the following characteristics:
regarding content (professional competencies, social competencies, management competencies);
with regard to the number of days of in-service training:
cost of in-service training (per day and per women/men)
recruitment, lay-off and staff turnover

The gender pay gap

Gender equality means equal rights and opportunities, as well as equal obligations and responsibilities for women and men. This is a human right that is a prerequisite for the functioning of democratic governance. Despite the fact that the Constitution, the Gender Equality Act and the Equal Treatment Act are in effect in Estonia, all of which stipulate the principle of equal treatment, in reality gender inequality can be found at all the levels of society from the division of domestic work between men and women to gender inequality in the labour market. Unequal treatment often stems from attitudes and gender stereotypes that accompany women and men in all walks of life and it has a direct or indirect impact on people’s opportunities for self-fulfilment. At the same time, equal opportunities for self-fulfilment in the society to develop one’s abilities and to make choices are important for each individual for achieving the general goals of economic growth and social cohesion. The increasing participation of women in the labour market ensures their economic independence and significantly contributes to economic development and the sustainability of social protection systems.

On a more general scale, gender inequality means the unfair distribution of resources between women and men. One such resource is income. Income can be wages, pension or unemployment insurance or parental benefit. An employee’s wages are often related to his or her other sources of income. For example, in the Estonian funded pension system, the pension contribution depends on the wages earned during life, and it also affects both parental and unemployment insurance benefits. Unequal pay (that puts women in a disadvantaged position) can lead to female poverty, which in turn affects both children and the women’s independence and self-sufficiency. Thus, wages not only affect the current well-being of women and men, but also factors into the quality of life throughout life. [1]

The gender pay gap is an issue that directly or indirectly affects all Estonian people, their opportunities, health, families’ livelihoods and Estonia’s reputation in the world.

The gender pay gap indicator has triggered some public debate on the fair treatment of women and men and gender equality.

The publicly available gender pay gap database that was developed in cooperation between Statistics Estonia and the Ministry of Social Affairs with the support of the Norwegian Financial Mechanism has analysed the possibilities to develop the pay gap statistics. Up-to-date data are available on the website of the Statistics Estonia.

More information on the current regulation and the obligations of the employer with relation to ensuring equal treatment and reducing the pay gap

Women and men shall be paid equal pay for equal work. Such an obligation arises from the Gender Equality Act, pursuant to which the activities of an employer shall be deemed to be discriminatory if the employer establishes conditions for remuneration or conditions for the provision and receipt of benefits related to the employment relationship which are less favourable regarding an employee or employees of one sex compared with an employee or employees of the other sex doing the same work or work of equal value (clause 6 (2) 3) of the Gender Equality Act.

Thus, the remuneration agreement between an employee and the employer shall correspond to the specific tasks and not depend on the employee’s sex.

Different methodologies are used to classify and evaluate jobs. For example, analytical assessment of work compares different forms of work on the basis of pre-selected objective factors such as the required classification and previous experience, the mental or physical effort required to perform the work, responsibility, and working conditions. [2]

If an employee suspects that he or she has not been paid equal pay for equivalent work, he or she has the right to request an explanation from the employer regarding the basis on which the remuneration is calculated and to obtain other necessary information to determine whether discrimination has occurred.

Shared burden of proof is applied in discrimination disputes. The applicant shall set out in the application the factual circumstances on the basis of which it can be presumed that discrimination on grounds of sex has occurred. The opposing party must prove in the course of proceedings that there has been no breach of the principle of equal treatment. If the person refuses to provide proof, such a refusal is deemed to be equal to acknowledgement of discrimination by the person.

If the rights of an employee have been violated due to discrimination, he or she may demand from the employer that the harmful activity be terminated and that both patrimonial and non-patrimonial damage be compensated for. An employee cannot demand to be hired, to enter into a contract for the provision of services or to be appointed.

The limitation period of a claim for compensation for damage on the basis of section 13 of the Equal Treatment Act is one year from the date when the injured party becomes aware or should become aware of the damage caused. Upon determination of the amount of compensation, a labour dispute body shall take into account, inter alia, the scope, duration and nature of discrimination.

Disputes related to discrimination based on sex are resolved in a labour dispute resolution body, i.e. court, or labour dispute committee. Discrimination disputes shall be resolved by the Chancellor of Justice by way of conciliation procedure under the Chancellor of Justice Act. Conciliation proceedings can also be conducted in a labour dispute committee.

[1] Study “Gender pay gap” commissioned by the Ministry of Social Affairs

[2] Read more: A good employer guide

1. Why is industrial segregation increasing in Estonia?

The differences in choices made regarding education between genders play a major role in the development of occupational gender segregation. Although statistics show that, on the one hand, the younger generations include more highly educated women than highly educated men compared to most EU countries, on the other hand, women still choose occupations that provide poorer working conditions and career opportunities than men. Education-related choices affected by sex lead to gender segregation in the labour market, meaning that men and women work in different sectors and in different positions.

There are certainly many reasons for this. The counselling data of the Labour Inspectorate reveals that it is a matter of people’s attitudes but also, for example, if there are already many representatives of one sex in a field of activity, it is more difficult for the opposite sex to enter the same field. This often requires a very conscious approach and support provided to the new colleague by the company’s representatives.

People’s choices are often influenced by the amount of wages paid in a particular sector. But also, for example, the society’s expectations of men or women, i.e. thinking in stereotypes, which change slowly.

2. What is the reason for this?

The main reasons are widespread attitudes and prejudices in the society which start in preschool and school and continue on in working life.

In other words, not every transport undertaking or car repair shop will employ a female truck driver or car mechanic, and in fact it would be quite difficult for them to do so, considering the proportion of young men and women who acquire vocational or higher education in these fields.

For example, there is no doubt that schools would like to employ male teachers, yet more women study to become teachers. Examples from other areas of activity could certainly be added.

Based on the information we have received through the counselling service of a lawyer of the Labour Inspectorate, as well as the cases that have reached the labour dispute committee, it can be stated that negative attitudes towards people who choose a so-called non-traditional profession also play a part in this. Even if an employer does everything in his or her power to support, for example, a single man who has joined a staff made up predominantly of women or vice versa, colleagues may not sufficiently support the new employee or competition may arise on the basis of sex, i.e. the person has all the knowledge and skills, but it is insinuated that he or she is still not good enough because of his or her “wrong sex”. This is a clear case of discrimination.

3. Is it good or bad that industrial segregation is increasing in Estonia?

Wide-scale segregation is never good. As male-dominated sectors (e.g. real estate, construction, information technology) tend to have higher wages than female-dominated sectors (e.g. education, health and social services), gender segregation also has a major impact on the gender pay gap and will affect pensions in the future. Dealing with gender segregation creates more balance in both education and working life. This in turn has a wider impact on gender structures and hierarchies, i.e. it affects gender equality in society in general.

However, it must be borne in mind that gender diversity in various areas and activities ensures better development in these areas.

Religious diversity in the workplace

The recent Equal@work guidelines on equal opportunities in the workplace take a look at how managers can handle religious diversity in the workplace, identify problems, and provide practical solutions and good practices to address them. These guidelines are a necessary tool for all employers who want to provide equal, dignified and diverse opportunities to employees in their place of work, while respecting religious diversity in the workplace.

These guidelines are a necessary tool for all employers who want to participate in creating equal, dignified and diverse places of work, while respecting religious diversity in the workplace.

The objective is to support employers in identifying the main problems and obstacles related to religious minorities in European workplaces and responding to them in practice; a checklist that was prepared in consultation with employers, trade unions and NGOs has also been included to help employers who want to make their diversity policy more effective.

The following checklist will help employers to determine whether they have paid sufficient attention and taken various measures to promote religious diversity in a multicultural work environment.

ASSESSMENT OF RELIGIOUS DIVERSITY

VALUING DIFFERENCES

a. Valuing differences as a strategic issue

I. Develop a diversity strategy, including benefits to business, objectives, and specific actions

b. Rethinking the matter of neutrality

c. Self-esteem

I. Monitor the recruitment process in terms of discrimination

II. Gather data on equality in accordance with the principles of good practice

III. Include questions regarding religious diversity in staff surveys

IV. Implement active corrective measures in management when cases of discrimination are identified

CREATING A CULTURE BASED ON FREEDOM, RESPECT AND DIGNITY

a. Important principles of freedom, respect and dignity

I. Human resource managers need to develop specific and tailor-made cultural and religious awareness plans.

II. Employers need to incorporate diversity into their management policies, including criteria such as assessing the performance of managers (and other employees).

III. To establish an effective and robust complaint resolution mechanism to complement the Rules of Procedure and the Victim Support System

REASONABLE ACCOMMODATION AND UNIVERSAL SOLUTIONS

a. General practice of reasonable accommodation

b. Raising awareness of religious expressions and consultation

I. Human resource managers need to raise awareness on different religious practices

II. Communication with religious minorities when developing measures in the company, involving employees’ representatives III. Consultation with health and safety experts

c. Balancing interests

d. Universal solutions

I. General areas for meditation

II. Adopt a flexible time management policy by providing breaks

III. Adopt a general policy on holidays and free time, allowing the use of other religious holidays

IV. Demonstrate awareness and acceptance of religions and holidays

Help and advice

To get advice and an overview of the possibilities for protecting your rights, contact the Gender Equality and Equal Treatment Commissioner: by e-mail inf [email protected] or by phone 626 9059.

The Gender Equality and Equal Treatment Commissioner is an independent and impartial expert who monitors compliance with the requirements of the Gender Equality Act and the Equal Treatment Act. The Gender Equality and Equal Treatment Commissioner can be approached by anyone who suspects that he or she has been discriminated against on grounds of sex, nationality, race, religion or other beliefs, age, disability, sexual orientation or trade union membership and the commissioner advises and assists people in submitting complaints regarding discrimination. In addition, the Gender Equality and Equal Treatment Commissioner analyses how laws affect the status of men, women and minority groups in the society and makes proposals to the government, government agencies and local governments to amend and supplement legislation.

You can find more information on the website of the Gender Equality and Equal Treatment Commissioner.

Disputes are resolved:

in court (including claims for compensation for damage);
in a labour dispute committee (including claims for compensation for damage);
in the conciliation procedure of the Chancellor of Justice.

Both the court and the labour dispute committee apply the principle of shared burden of proof, i.e. the applicant shall state in the application the factual circumstances which enable them to presume that discrimination has taken place. In the course of proceedings, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. If the person refuses to provide proof, such a refusal is deemed to be equal to acknowledgement of discrimination by the person. The shared burden of proof does not apply in administrative or criminal proceedings.

The victim can file a claim for compensation for damage within one year of becoming aware of the violation of rights.

Employers have a key role in preventing discrimination and promoting diversity in the workplace. Employers have a responsibility to ensure that their employees can work in a non-discriminatory environment.

Studies have shown that employing a diverse staff in a company has a good effect on business. Implementing a diversity strategy gives employers access to a wider range of talent and helps to find skilled workers. A diverse staff can provide a business with different skills, experiences, ideas and perspectives, and can help a company reach new markets and new customers.

While each organisation needs to set its own priorities, the benefits may include: a wider choice in attracting, recruiting and retaining talent; reducing the cost related to labour mobility and slacking off; contributing to contractor’s flexibility and efficiency; building employee commitment and morale; better management of the impact of globalisation and technological changes; increasing creativity and innovation; expanding knowledge of operating in different cultures; better understanding of the needs of existing customers; more information on the needs of new customers; help in the development of new products, services and marketing strategies; improving the organisation’s image in the eyes of external stakeholders; providing opportunities for disadvantaged groups and increasing social cohesion.

What are the benefits of respecting the principles of gender equality and equal treatment?

Increases staff efficiency (e.g. the employer spends less time and money on the recruitment process; talents are not lost)
Employees’ skills are developed in a targeted way which is beneficial for the company (increases the productivity and quality of work of the employees)
A larger number of employees who have finished their probationary period continue working for the company, meaning that less money is spent on recruitment and training
Employees’ satisfaction with their work and work environment increases (among other things, greater commitment to the organisation; less staff turnover, fewer conflicts, less work-related stress, fewer labour disputes, etc.).

Non-governmental organisations (NGOs) are also active across Europe in the fields of discrimination and diversity. These organisations help raise awareness of discrimination and can provide information and support when people are discriminated against.