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

• Author: Kádár, András
• Pages: 81-82

81

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

a) Scope for positive action measures

In Hungary, positive action in respect of racial or ethnic origin, religion or belief, disability,

age or sexual orientation is permitted under national law.

National law does not differentiate between protected ground s, nor is it limited to

employment, when providing for preferential t reatment. Pursuant to Article 11(1) of the

ETA, ‘a measure aimed at the elimination of an expressly identified social group’s

objectively substantiated in equality of opportunities is not considered a breach of the

principle of equal treatment if a) it is based on an act of Parliament, on a Government

decree based on an act or on a collective contract, effective f or a definite term or until a

specific condition is met, and/or b) the el ection of a party’s executive and representative

organ and the setting up of a candidate at the elections defined under the Election

Procedure Act is executed in line with the party’s fundamental rules’.

Paragraph (2) provides that ‘a measure aimed at evening out a disadvantage shall not

violate any basic rights, shall not provide u nconditional advantage, and shall not exclude

the consideration of individual circumstances’.

Certain provisions of domestic law expressis verbis allow for positive action: (i) RDP Act,

Article 3: Given their situation, persons with disabilities have less access to their rights

than others, therefore, it is reasonable to accord preferences to them in all possible ways;

(ii) ETA, Article 23: An act, a Government decree based on an act or collective contract

may impose an obligation to provide preferential treatment to a specified group of

employees in respect of th e labour relationship or other relationship relating to

employment; (iii) ETA, Article 25(2): Pursuant to or authorised by the law a nd based on

health, disability or a c haracteristic defined in Article 8, a Government decree may grant

additional benefits to specified social groups within the framework of the social and

healthcare system, in accordance with the provisions herein; (iv) ETA, Article 29: A

Government decree created pursuant to the law or the authorisat ion thereof may impose

an obligation to provide p referential treatment to a specified group of participants in

education within or outside the school system in respect of education or training.

b) Quotas in employment for people with disabilities

In Hungary, national law provides for a quota for the employment of people with

disabilities.

A quota-type measure relating to the employment of people with disabilities is constituted

by Article 23 of Act CXCI of 2011 on the Benefits of Persons with an Altered Ability to Work

and the Amendment of Certain Laws .168 With this measure, employers169 shall be obliged

to pay a ‘rehabilitation contribution’170 if they have more than 25 employees and the

proportion of persons with disabilities within the workforce is below 5 %. According to

analyses, this quota system, which has been in place since 1998, albeit with changing

conditions and figures, has achieved some improvement in the employment of persons

with disabilities: their employment rate increased from 11 % to 35 % between 2001 and

168 Act CXCI of 2011 on the Benefits of Persons with an Altered Ability to Work and the Amendment of Certain

Laws (2011. évi CXCI. törvény a megváltozott munkaképesség személyek ellátásairól és egyes törvények

módosításáról), 29 December 2011, http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=A1100191.TV.

169 The duty applies (under identical conditions) to both the private and the public sector, with some

exemptions, including law enforcement bodies, companies established for the specific purpose of employing

inmates and the army.

170 The amount per unfilled position per year is nine times the minimum wage, in 2019 it was approximately

EUR 4 200.