Exceptions

• Author: Hiltunen, Rainer
• Pages: 34-41

34

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Finland, Section 12 of the Non-Discrimination Act provides an exception for genuine

and determining occupational requirements. The wording of Section 12(1) states that a

difference of treatment is justified ‘if the treatment is founded on genuine and

determining requirements concerning the type of occupational tasks and their

performance, and the treatment is proportionate to achieve the legitimate objective.’

There is very little case law on employment discrimination and most of it concentrates on

whether the employment contract has been terminated on any basis allowed in

employment legislation. Even if the claim is that the contract has been terminated on a

discriminatory basis (i.e. on grounds of health) instead of because of a justified need to

reduce personnel, the concept of genuine and determining occupational requirements is

rarely interpreted in these cases.98

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

2000/78)

In Finland, the Non-Discrimination Act does not provide for an exception for employers

with an ethos based on religion or belief.

However, in the Government proposal the question is addressed in conjunction with the

questions of genuine and determining occupational requirement and it includes a

reference to Article 4(2) of Directive 2000/78.99 The Government proposal cites the

Article 4(2) definition that a difference of treatment based on a person’s religion or belief

will not constitute discrimination where, by reason of the nature of these activities or of

the context in which they are carried out, a person's religion or belief constitutes a

genuine, legitimate and justified occupational requirement. Additionally, the Government

proposal states that ‘setting such a requirement cannot lead to discrimination on another

ground.’100 There is no case law on the issue.

4.3 Armed forces and other specific occupations (Article 3(4) and Recital 18

Directive 2000/78)

In Finland, the Non-Discrimination Act does not provide an exception for the armed

forces in relation to age or disability discrimination (Article 3(4), Directive 2000/78).

4.4 Nationality discrimination (Article3(2))

a) Discrimination on the ground of nationality

In Finland, the Non-Discrimination Act does not include exceptions relating to difference

of treatment based on nationality.

98 There does not seem to have been systematic information gathering or any analysis of employment

discrimination (or genuine and determining occupational requirements) in Finland. This may be due to the

fact that the Non-Discrimination Ombudsman, who produces studies and information on discrimination in

areas of life other than employment, is not authorised to work with employment discrimination claims. Also

the conciliation agreements between employers and trade unions representing employees in discrimination

cases are usually confidential. In 2014, the Ministry of Employment and the Economy published a study

entitled ‘Reporting on Employment Discrimination in Finland’.

https://tem.fi/documents/1410877/2859687/Ty%C3%B6syrjinn%C3%A4n+seuranta+suomessa+18122014

.pdf. The follow-up to the recommendations made on developing the reporting of employment

discrimination is not available.

99 In the Government proposal the question is addressed in conjunction with the questions of genuine and

determining occupational requirement and it includes a reference to Article 4(2) of Directive 2000/78.

100 Government proposal on the Non-Discrimination Act, 19/2014, p. 72.