Positive action (article 5 Directive 2000/43, article 7 Directive 2000/78)

• Author: Jakub Tomsej
• Pages: 59-60

59

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In Czechia, positive action is permitted in national law in respect of racial or ethnic origin,

religion or belief, disability, age or sexual orientation.

Sections 7(2) and 7(3) of the Anti-Discrimination Act provide for positive measures (i.e.

positive action). The law allows for positive measures to be implemented within the whole

material and personal scope of the law, including all grounds covered by the EU directives.

The law forbids positive measures introducing rules of automatic p reference.

It is worth highlighting that positive action is employed less in Czechia than in some other

European countries.176

b) Quotas in employment for people with disabilities

In Czechia, national law provides for a quota for the employment of people with disabilities.

Under Section 67(2) of the Employment Act, companies with more than 25 employees

must apply one or a combination of three measures:177

- Employ a certain percentage of employ ees with disability – i.e. individuals who are

acknowledged as such by the social security authority (4 % of all employees).

- Commission goods or working programmes from employers who employ more th an

50 % employees with disability working in specially established protected workplaces

or from people with disability who are self-employed.

- Provide payments to the state budget for an employee with disability who should

have been employed but was not. The amount of the payment for one person with

disability who should have been employed is calculated as 2.5 multiple of an average

month salary and is paid on a yearly basis.178 This payment becomes a part of general

state income and is not earmarked for any specific purpose. For example, there is no

requirement to use these payments to develop programmes to assist people with

disabilities.

The state pays allowances to employers whose staff comprise more than 50 % employees

with disability.179 The allowances provided constitute 75 % of the average wage in Czechia

in the preceding year for a person classified as having a full disability. For a person

classified as having a partial disability or being disadvantaged on health grounds, th e

allowances constitute a 0.33 multiple of the average wage. Moreover, the state contributes

to the establishment of protected workplaces for people with disability, wh ich serves to

arrange the necessary equipment. There is a condition that this protected workplace must

be occupied for at least three years.

The quota system has been criticised for its lack of effectiveness by organisations for people

with disabilities. Criticism has focused on the preference of employers for making payments

to the Government. This may also be caused by the fact that there are no rules on

automatic preference for individuals with disabilities. In annual 2019 statistics,180 the

employment offices registered 33 726 unemployed persons with disability. They also

recorded that around 11 600 job positions were assigned to people with disability. During

176 Boučková, P., Havelková, B., Koldinská, K., Kühn, Z., Kühnová, E., Whelanová, M. (2016), Antidiskriminační

zákon Komentá (Commentary on the Anti-Discrimination Act), Praha, C. H. Beck, p. 323.

177 Act No. 435/2004 on Employment, 13 May 2004, Section 81(2).

178 Act No. 435/2004 on Employment, 13 May 2004, Section 82(1).

179 Act No. 435/2004 on Employment, 13 May 2004, Section 78.

180 Ministry of Social Affairs (2020), Msíční nezamstnanost - vývoj na trhu práce v roce 2019 (Monthly

unemployment - progress on the labour market in 2019)” – statistics, available at:

https://www.mpsv.cz/web/cz/mesicni.