Finland – agediscrimination.info

Roschier, Attorneys Ltd.

www.roschier.com

Overview

Age discrimination provisions are mainly included in the Finnish Constitution (731/1999, as amended), the Employment Contracts Act (55/2001, as amended) and the Non-Discrimination Act (21/2004, as amended). The provisions of the Non-Discrimination Directive 2000/43/EC and the Non-Discrimination in Employment Directive 2000/78/EC have been implemented in Finland by passing the Non-Discrimination Act on 1 February 2004.

The Finnish Constitution contains a general principle of equality which forbids every form of discrimination. The Employment Contracts Act and the Non-Discrimination Act contain detailed provisions that take into account equality and prohibit unjustified discrimination (whether direct or indirect). According to such provisions, any unjustified discrimination on the basis of age, health, disability, national or ethnic origin, nationality, sexual orientation, language, religion, opinion, belief, family ties, other personal characteristics, trade union activity, political activity or any other comparable circumstances is prohibited. In addition, provisions on the prohibition of gender discrimination are laid down in the Act on Equality between Women and Men (609/1986, as amended).

Based on the prohibition of discrimination and obligation of equal treatment included in the Employment Contracts Act, employers shall not exercise any unjustified discrimination against employees e.g. on the basis of age. As a rule, employers must treat their employees equally unless there is an acceptable cause for derogation deriving from the duties and position of the employees. Employers shall also observe the prohibition of discrimination when recruiting employees.

Who’s covered?

The non-discrimination provisions of the Employment Contracts Act prohibit discrimination and require equal treatment of employees and job applicants whereas the applicability of the Constitution and the Non-Discrimination Act is much broader.

The Non-Discrimination Act covers both public and private activities, e.g. in the context of conditions for access to self-employment, means of livelihood, and support for business activities. The Non-Discrimination Act also encompasses recruitment, employment and working conditions as well as personnel training and promotion. The Non-Discrimination Act also applies to access to training, including advanced training and retraining and vocational guidance, as well as membership and involvement in an organisation of workers or employers or other organisations whose members are engaged in a particular profession, including the benefits provided by such organisations.

However, the Non-Discrimination Act does not apply to the education system or application of provisions governing entry into and residence in the country by foreigners.

What enforcement/remedies exist?

If an employer intentionally or negligently breaches the obligations arising from the employment relationship or the Employment Contracts Act, including a breach of the prohibition of discrimination, said employer shall be liable for the loss caused to the employee.

An employer who breaches his obligation to treat women and men equally according to the Act on Equality between Women and Men is liable to compensate the person affected, depending on the nature of the offence, in the amount of EUR 3,000 at a minimum and EUR 15,000 at a maximum. To the extent justifiable, considering the nature of the discrimination and the circumstances, the above minimum and maximum amounts of compensation may be reduced or exceeded. In addition, the employer may be liable to the victim for actual damages.

According to the Non-Discrimination Act, illegal discrimination obliges the violator of the law to pay the injured party compensation which shall not exceed EUR 15,000. In practice, the compensation varies depending on the severity of the infringement. However, the compensation may be exceeded if it is justifiable by the duration and severity of the discrimination and other circumstances of the case. In addition, payment of compensation does not preclude the victim claiming damages under the Tort Liability Act (412/1974, as amended) or any other relevant legislation.

Furthermore, the Finnish Penal Code (39/1889, as amended) covers discrimination in the provision of public services and in the discharge of public duties, where the penalty is a fine or imprisonment for up to six (6) months. The Penal Code also covers discrimination in the field of employment. An employer or employer’s representative may be sentenced to a fine or to imprisonment for up to six (6) months if the employer during recruitment or employment without important and justifiable reasons puts a job seeker or an employee in an inferior position for discriminatory reasons.

Based on the above, the victim of discrimination may bring a civil claim before the district court and/or bring criminal charges against the violator. In addition, in matters related to employment, the occupational health and safety authorities ensure that employers follow the employment related laws. The authorities may consider the case and upon encountering discrimination, must report it to a public prosecutor. If the discrimination takes place in the public sector, a victim may file a complaint with the Parliamentary Ombudsman or the Councillor of Justice.

How common are claims?

Discrimination claims are not common in Finland. There have been only a few discrimination claims (mainly regarding ethnic discrimination and gender discrimination).

What claims are most common and what are trickiest issues for employers?

The most common claims in Finland are cases regarding equality between men and women. Age discrimination cases are less common. However, discrimination cases are expected to increase in the next few years mainly due to the employee’s increased awareness of the discrimination legislation. Cases of discrimination in recruitment also do exist in Finland and the number of those cases may also increase in the future.

Are there any specific exceptions in your laws?

According to the Non-Discrimination Act, different treatment based e.g. on age is not considered discrimination when it has a justified purpose that is objectively and appropriately founded and derives from employment policy, the labour market or vocational training or some other comparable justified objective, or when the different treatment arises from age limits adopted in qualification for retirement or invalidity benefits within the social security system. A procedure based on an equality plan and intended to implement the intention of the Non-Discrimination Act in practice is also not considered discrimination. In addition, different treatment that is founded on a genuine and determining requirement relating to a specific type of occupational activity and the performance of said activity is not considered discrimination.

Furthermore, the Non-Discrimination Act does not prevent specific measures aimed at the achievement of genuine equality in order to prevent or reduce the disadvantages caused by different types of discrimination. However, this positive action must be appropriate to its objective.

Likewise, there is a possibility to place employees indirectly in a different position based on age. Indirect discrimination shall be deemed to have occured when an apparently neutral provision, criterion or practice puts a person at a particular disadvantage compared with other persons in the same position, unless said provision, criterion or practice has an acceptable aim and the means used are appropriate and necessary for achieving this aim. Thus, a requirement concerning specific expertise, length of work experience or similar factors may be acceptable if they can be justified by reverting to a genuine and substantial requirement relating to the occupational activities and the performance of the said activities. For example, it is commonly acceptable that notice periods and accrued holidays are longer for those employees with a longer employment relationship. Furthermore, if not directly linked to any exact age and provided that the working tasks objectively require good physical condition, the requirement of physical stamina may also be acceptable. In addition, the existence of a collective bargaining agreement imposing e.g. particular salary determination provisions may also allow indirect age discrimination by e.g. allowing lower salary categories to younger employees or students not possessing required education or work experience.

Retirement ages

A system of flexible retirement age was introduced in Finland as of 1 January 2005. Based on pension legislation, an employee may choose when to retire between the ages of 63 – 68 years, though certain occupations (e.g. certain professions within armed forces) are subject to retirement ages below 63. Accordingly, it is the employee who is entitled to choose his/her retirement age. However, employment contracts expire automatically when the employee reaches the age of 68, unless the employer and the employee agree to continue the employment relationship beyond this age.

The system of flexible retirement age between the ages of 63 – 68 years also applies to civil servants. In addition, according to the Act on Civil Servants the general resignation age is 68. Accordingly, the employment contract of a civil servant is deemed to expire automatically when he/she reaches the age of 68 years. Furthermore, the resignation age may be less than 68 years in such offices where the nature of the position so requires.

In addition, the employer and the employee may agree on the retirement age in an employment contract. However, if the parties have agreed on the retirement age below 68 years in the employment contract, such clause may, in certain circumstances, be invalid. This is especially the case if the employee was young when entering into the employment contract and if his/her later retirement pension will not, due to the agreed low retirement age, correspond to the expected level of pension.

Interesting cases

No relevant court rulings have been rendered regarding age discrimination at the present time.