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

• Author: Kogovsek Salamon, Neza
• Pages: 58-59

58

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

2000/78)

a) Scope for positive action measures

In Slovenia, posit ive action is permitted in n ational law in respect of racial or ethnic

origin, religion or belief, disability, age and sexual orientation. The law do es not state

grounds for which positive action is not permitted.

Article 17 of the Protection Against Discriminati on Act states that positi ve action con sists

of temporary m easures, defined by law, which are designed to prevent a less favourable

position for people with a particular personal characteristic or to compensate for a less

favourable position (Article 17(1)). Furthermore, the law stipulates two different fo rms of

positive action: i ) incentive m easures which provide special incentives or benefits for

people in a less favourable situation, and ii) positive measures which intend to give

priority to people with a particular personal characteristic and are used in cases when

there is an obvious underrepresentation of people with a specific personal characteristic

(Article 17(2)). The areas to which the provisions apply are not mentioned; however,

positive action measures can take place in all the areas protected by this law.

Furthermore, according to Article 18 of the Protection Against Di scrimination Act, positive

action may be introduced by state bodies, self-governing local communities, holders of

public authority, employers, educational institutions, business entities, and others

depending on the nature of their operations and their activities (Article 18(1)). Positive

action must pursue a legitimat e aim of eliminating the fact-based, less favourable

situation of individuals with a certain personal characteristic, and they must be

appropriate and n ecessary for the elimination of such a situation. The en tities that adopt

positive action must r egularly check wh ether c ontinuing with the measures is

substantiated and justified. If they establish t hat the aim of their implementation has

been achieved, they must terminate the measures immediately (Article 18(2 )).

According to its Annual Report for 2019, the Advocate of the Principle of Equal ity found

that this opportunity to take positive action was underdeveloped in Slovenia. The entities

that are entitled to take th is opportunity are not doing so, either in recruitment or in

policy making. The Advocate assesses that one of the reasons for not taking positive

action is th e lack of equality data, which are essential to assess the unequal positions of

certain groups and to legitimise the use of positive action.142

b) Quotas in employment for people with disabilities

In Slovenia, national law provides for quotas for the employment of people with

disabilities.

There is a quota system in place for employing people with disabilities wh ich applies to all

companies (the mandatory proportion of people with disabilities to be employed out of

the total of all employees working for a certain employer). The quota, which differs

depending on the main activity o f the employer, was set by a Government regulation

following a proposal by the Economic and Social Council. 143 The duty for quotas applies to

all companies which employ at least 20 employees (employers who have at least 20

employees are obliged to employ people with disabilities as 2 % to 6 % of the total

number of employees). Companies that do not meet the quota must pay contributions to

the Fund for Promoting the Employment of Persons with Disabilities equivalent to 70 %

142 Advocate of the Principle of Equality (2020), Annual Report for 2019 (Redno letno poročilo za leto 2019),

p. 142, available at: http://www.zagovornik.si/porocila/.

143 Uredba o določitvi kvote za zaposlovanje invalidov (Decree establishing the employment quota for persons

with disabilities), adopted on 27 March 2014, available at:

http://pisrs.si/Pis.web/pregledPredpisa?id=URED6489.