Compliance and enforcement aspects (horizontal provisions of all directives)

• Author: Marlies Vegter
• Pages: 74-82

74

11 Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1 General (legal) context

11.1.1 Surveys and reports about the particular difficulties related to obtaining legal

redress

One topic which has attracted attention lately is discrimination in the process of

recruitment and selection. Several reports appeared in which risks were mentioned, such

as bias by the employer and/or recruiters, advertisements that do not reach certain groups

and a lack of transparency during the recruitment procedure.212 Discrimination between

men and women is not the main theme. M ore attention is paid to discrimination on the

basis of ethnic background (e.g. research shows that people with a ‘foreign name’ are less

likely to be invited for a job interview) and to age discrimination.

What becomes clear from surveys and reports is that obtaining legal redress is not always

easy. There are, broadly speaking, three ways in which redress can be obtained: through

civil law, through administrative law and through criminal law.

In civil law victims of discrimination must start court proceedings themselves. There are

very few women who do so. More women (and sometimes men) go to the NIHR, but this

body cannot give binding rulings. The re are several reasons wh y so few women start a

court case. One is the risk of victimisation, especially if the person is still employed by the

alleged perpetrator. Another is the costs of the procedure. These are especially high if one

has to involve an attorney; court fees may also be high. Thirdly, the bu rden of proof may

be a problem. The burden of proof will shift when facts are established from which

discrimination may be assumed, but even this is not always easy if the other party (the

employer) completely denies the discrimination. Lastly, the sanctions are not always

deterrent. It might be difficult to prove pecuniary damage and Dutch court s are rather

stingy when it comes to non-pecuniary damages. Pregnancy discrimin ation, for example,

is a serious problem in the N etherlands, but a s a rule no more than two or three cases

reach the courts annually and, in some years, even fewer (as far as is known; if judgments

are not published, they remain unknown).213

The prohibition of disc rimination can to some extent also be enforced by the Labour

Inspectorate. Since 2009 the Labour Inspectorate has a role in respect of discrimination.

It monitors whether companies have an anti-discrimination policy and whether this policy

is put into p ractice. If not, companies receive an instruction to take ap propriate steps. If

they do not follow this instruction, th ey may be fined. This happened once in 2017 and

two or three times in 2018. The chances of redress are thus small. In any case, the Labour

Inspectorate does not itself judge whether an employer discriminates or not, only if it has

a policy against discrimination. It is up to the NIHR or the courts to decide whether an

employer unlawfully discriminates against an employee. There are plans for extending the

role of the Labour Inspectorate in the area of recruitment and selection (see Section

11.1.3).214

212 See, inter alia, TNO (2018), Risico’s voor discriminatie bij werving en selectie. Huidige gang van zaken en

trends (Risks for discrimination within recruitment. Present state of affairs and trends), at

http://publications.tno.nl/publication/34627249/puJbur/TNO-2018-R11086.pdf.

213 See for information on court cases Section 4.3.4 of this report. See for research (inter alia) the report by

the NIHR of 2016 on discrimination against pregnant women: NIHR (2016), Is het nu beter bevallen?

Vervolgonderzoek naar discriminatie op het werk van zwangere vrouwen en moeders met jonge kinderen

(Did the delivery go better? Follow-up research on discrimination at work against pregnant women and

mothers with young children): https://www.mensenrechten.nl/nl/publicatie/36883.

214 See for more information in this respect the policy documents about discrimination on the labour market

which were published in 2018: Letter to Parliament by the Secretary of State for Social Affairs and

Employment, ’Broad outline Action Plan on labour market discrimination 2018-2021’, 19 June 2018:

https://www.rijksoverheid.nl/documenten/kamerstukken/2018/06/19/hoofdlijnenbrief-actieplan-

arbeidsmarktdiscriminatie-2018-%E2%80%93-2021 and the follow-up document of 22 November 2018,