New legislation to address labour market discrimination
Discrimination in the recruitment and selection of candidates unfortunately remains prevalent in the labour market, resulting in unequal opportunities. In order to counteract this issue, the previous cabinet submitted a proposal to the House of Representatives in December 2020, known as the Equal Opportunities in Recruitment and Selection Monitoring Act. On 14th March this year, the legislative proposal was adopted by the House of Representatives.
Law on supervision equal opportunities in recruitment and selection
The legislative proposal includes the obligation for employers and intermediaries to adopt a procedure that incorporates safeguards to combat labour market discrimination in recruitment and selection and to promote equal opportunities. Labour market discrimination is defined as making prohibited distinctions based on religion, belief, political affiliation, race, gender, nationality, sexual orientation, marital status, disability, chronic illness or age. Employers with more than 25 employees must document this procedure in writing, while employers with maximum 25 employees are only obligated to provide a verbal explanation of their procedure.
The procedure
The (written) procedure should therefore contain safeguards to counter labour market discrimination in recruitment and selection. It basically reflects how the company proceeds when filling a vacancy and contains measures to prevent discrimination in recruitment and selection. One specific measure already mentioned by the legislator is the obligation for employers to inform employees involved in recruitment and selection about preventing labour market discrimination and the measures under the procedure. Furthermore, the following conditions are imposed on the procedure:
- the procedure must show that the recruitment procedure is based on previously established job requirements relevant to the position;
- the procedure is transparent and verifiable;
- the procedure is systematic.
Additional regulations regarding the specific details of the procedure may be established by or pursuant to Order in Council. To assist employers in implementing these measures, the government recommends joining the Diversity Charter (SER) or consulting the Labour Market Discrimination Checklist (TNO).
Procedure: consequences for employers
If the legislative proposal enters into force, a number of new obligations will apply to employers:
- the employer will draw up a (written) procedure;
- if a works council has been set up in the organisation, the employer submits the procedure to the works council for approval;
- the employer introduces the procedure and disseminates it within the company;
- the employer actively informs employees involved in recruitment and selection about the procedure;
- the employer adapts the procedure and measures within the framework of the procedure if there is reason to do so on the basis of experience gained, the state of knowledge or professional services.
Compliance with the law will be monitored by the Netherlands Labour Inspectorate, which has the authority to impose administrative fines.
The duty to report discriminatory requests
An important addition to the legislative proposal is the Memorandum of Amendment that introduces a reporting obligation. This reporting obligation outlines how intermediaries and employment agencies should handle discriminatory requests from clients. In the event of a discriminatory request, discussions should be initiated with the client in an attempt to address the issue. If these discussions prove ineffective and the request remains discriminatory, it must be reported to the Dutch Labour Inspectorate.
This reporting obligation also entails a number of new obligations for intermediaries and employment agencies:
- the intermediary or employment agency establishes a procedure that describes how discriminatory requests are dealt with;
- the intermediary or temporary employment agency applies this procedure;
- the intermediary or temporary employment agency reports to the Netherlands Labour Inspectorate if, after following the procedure, a request is still discriminatory.
Further conditions will be imposed on the procedure by or pursuant to Order in Council.
In conclusion
Now that the legislative proposal has been passed by the House of Representatives, it awaits consideration in the Senate. If the Senate votes in favour, an implementation period of (at least) nine months will then apply. Nevertheless, either as an employer, intermediary or employment agency employee, it is good to familiarize with the content of the legislative proposal and the new obligations it entails.
We will diligently monitor the progress of this legislative proposal. If you require further information regarding the aforementioned details or seek clarification on how this legislative proposal may impact your specific circumstances, please do not hesitate to contact us.
