Exceptions

• Author: Biljana Kotevska
• Pages: 43-51

43

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements ( Article 4)

In North Macedonia, national legislation provides fo r an exception for genuine and

determining occupational requirements.

Article 7 of the Anti-Discrimination Law, entitled ‘Measures and actions which are not

discrimination’ contains the following formulation for genuine and determining occupational

requirements:

‘Different tr eatment of persons upon any of the discrimination grounds due to t he

nature of their occupation or activity or due to the context in which suc h occupation

is performed, which constitute a genuine an d determining requirement, the purpose

of which is legitimate, while such conditions do not breach the required level in the

course of their fulfilment.’ (Article 7(3(2)))

This is in line with the directives.

Article 8 of the Law on Labour Relations177 uses wording on exemptions from occupational

requirements in the context of access to labou r, which corresponds to the language of

Article 4 of Directive 2000/43/EC. Notably, the law states that:

‘It will not be considered discrimin ation making a difference, exclusion or giving

priority, when the nature of the work is such or the work is perfor med in such

conditions that the characteristics contained in Article 6 of th is law are essential and

decisive conditions for performing the work, providing that the objective to be

achieved is justified and the requirement has been carefully considered.’ 178

Although a careful cons ideration of the requirement () is n ot the same as being

proportionate (), there is room to interpret it as such. However, from the

publicly available data it cannot be concluded whether such an interpretation has been

applied in practice.

The grounds covered by the Law on Labour Relations are broader than the prot ected

grounds of the two directives and the differences in treatment in cases of determining

occupational requirements need not only b e based on the five grounds mentioned in the

directives, but can cover all protected grounds.179

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In North Macedonia, national law does not provide for an exception for employers with an

ethos based on religion or belief.

The Law on the Legal Position of Churches, Religious Communities and Religious Groups180

contains no specific arti cles on employment an d labour relations. Other laws also do not

include specific provisions on exemptions for employers with an ethos based on religion or

belief. However, in the exemptions from prohibition of discrimination in the Law on Labour

177 Law on Labour Relations, 2005.

178 Law on Labour Relations, 2005, Article 8.

179 The directives’ grounds of race, belief, disability, age and sexual orientation are all covered, and the Law on

Labour Relations goes beyond them in an open-ended list: sex, health condition, membership of a trade

union, social origin, position of the family, property or other personal circumstances.

180 Law on Churches, 2007. Full title: Republic of North Macedonia, Law on the Legal Position of the Church,

Communities of Faith and Religious Groups (     з   

 ), 2007, Official Gazette of the Republic of Macedonia, No. 113/07, Constitutional Court

Decision, U.br.104/2009.