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Employers’ Obligations Under the Law on Gender Equality and Amended Law on Prohibition of Discrimination

Employers’ Obligations Under the Law on Gender Equality and Amended Law on Prohibition of Discrimination

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On 20 April 2021, the National Assembly of the Republic of Serbia enacted the Law on Gender Equality and amendments to the Law on Prohibition of Discrimination. Both laws are published in the Official Gazette of RS no. 52 of 24 May 2021 and will enter into force on 1 June 2021. The Law on Gender Equality will repeal the Law on Equality of Genders (Official Gazette of RS no. 104/09).

The stated laws were enacted for harmonisation of legislation of the Republic of Serbia with relevant regulations of the European Union, ratified international agreements, generally accepted standards and provisions of relevant Directives of the European Union, and they contain provisions which refer, among others, to working environment and which will be analysed in the upcoming text.

Prohibition of discrimination

The amendments to the Law on Prohibition of Discrimination introduced the definition of employer and it has been determined as a domestic or foreign legal entity or natural person in the public or private sector, which employs or engages for work one or more persons, i.e. an entity which, in state authority, autonomous province body or local self-government unit, performs the duties of the employer on behalf of the Republic of Serbia, autonomous province or local self-government unit.

There is a prescribed obligation for employers to undertake relevant measures if necessary in a particular case to ensure access, reasonably adjusted work place, participation, professional training, and advancement in work of employees who are in unequal position compared to other employees, and especially in regard to persons with disabilities, members of national minorities, women, men, persons with different sexual orientation, gender identity, elderly and other, unless such measures would represent a disproportionate burden for the employer. It has also been specified that the burden is not considered as disproportionate if it has been mitigated by appropriate measures of public policies in the domain of work and employment.

The provisions on discrimination based on age have also been amended and it is now defined that different acting on basis of age shall not be considered discrimination if it is objectively and reasonably justified by a legitimate cause, and especially by legitimately established employment policy, labour market goals, additional education and training, i.e. professional training and if the manners of achieving of such goal are suitable and necessary, as specified in detail by this law.

Gender equality

The Law on Gender Equality prescribes the types of measures for achieving and improvement of gender equality, which can be classified as general and specific. In relation thereto, certain obligations of employers have been defined.

Plan and programme

This law defines that employers with more than 50 employees and engaged persons shall be obliged to define and implement special measures depending on the goals that need to be realised by their definition and implementation.

According to the provisions of this law, special measures are defined and implemented within annual plans or working programmes i.e. in accordance with this and other laws, they are prepared and enacted by employers and, in addition to the elements prescribed by the law, they contain the part referring to the achievement and improvement of gender equality.

The part of plan or programme referring to the realisation of gender equality shall particularly contain: brief assessment of the situation regarding the status of women and men in a public authority body i.e. with the employer, including age, the list of special measures, reasons for introducing special measures and goals achieved thereby, start of application, manner of implementation, control and termination of implementation of special measures.

Reporting on plan and programme adoption

Employers whose plans and programmes are not publicly available shall be obliged to notify the adoption of plan or programme to the Ministry in charge for the field of human rights (“the Ministry”) and to enclose with such report the excerpt from the plan/programme in the part referring to realisation and improvement of gender equality, no later than 15 days after the adoption.

Reporting on plan and programme realisation

The information on plan or programme realisation, in the part referring to realisation of gender equality, represent an integral part of annual report on realisation of annual plan or programme which is, under the law, enacted by employer’s bodies.

The employers whose annual reports on realisation of plan or programme are not publicly available, shall be obliged to notify to the Ministry the adoption of report on realisation of annual plan or programme and along with the report to enclose the excerpt from annual report on realisation of plan or programme – the part referring to realisation of gender equality, no later than 30 days after the day of its adoption, for the purpose of informing and monitoring the realisation of planned activities in this field.

The plan for managing risks from violation of gender equality principles

The obligation to adopt this act is envisaged for public authorities, and it has been prescribed that it may also be enacted by other legal entities and organisations.

The fields where measures are prescribed and implemented

It has been prescribed that in the field of labour, employment and self-employment, the measures shall be implemented with regard to:

  • increase of employment and possibility of employment and self-employment;
  • equal opportunities in the field of employment and work and evaluation of the overall value of unpaid household work;
  • structure of employers’ managing and monitoring bodies;
  • prohibition of employment termination in certain cases – based on sex/gender, maternity leave or leave for child care and absence from work for special child care, as well as for initiated procedure for protection against discrimination, harassment, sexual harassment and sexual extortion;
  • prohibition of harassment, sexual harassment and sexual extortion;
  • prohibition of gender inequality during leave from work for pregnancy, maternity leave, leave for child care and special child care;
  • prohibition of unequal salary for the same work or work of equal value;
  • social dialogue and gender equality.

It is obvious that many of these measures are already regulated by other acts such as the Labour Law or Law on Prohibition of Harassment at Work.

A particularly interesting provision is the one prescribing that an employer shall be obliged, upon employee’s return from pregnancy leave, maternity leave, leave for child care, special child care, adoption, foster care, guardianship, to return them to equal or other equivalent jobs, in which manner is done harmonisation with the provisions of Revised ILO Convention no. 183 on Maternity Protection.

Transfer of such employees or delegation to work with another employer is also prohibited if this is less favourable for the employee, unless this was done in accordance with the findings of competent health authority or another competent authority or for organisational changes with the employer, all in accordance with the law.

What remains open is – how long does this protection last i.e. how long is the employer prohibited from transferring to other jobs an employee who was absent for the above stated reasons.

Leave from work for pregnancy, maternity leave, leave for child care and special child care, paternity and maternity (parenthood), adoption, fostering, guardianship, may not be a reason for reducing the right to:

  • professional training and additional education;
  • advancement and acquiring higher title on basis of met requirements, under the law;
  • use of all improvements of work conditions provided during the leave.

The period of employee’s absence from work for pregnancy, maternity leave, leave for child care and special child care will not be included in assessment of success at work in the overall period where success at work is estimated.

Registration of information on gender equality realisation

For monitoring and realising gender equality and reporting thereon, employers are obliged to record the information grouped by gender, which are expressed in numbers or percentage and may not contain personal information.

The law enlists the information that are recorded in a special form prescribed by the Ministry, which also contains every change of such information that is entered within eight working days after the change had occurred. Employers are also obliged to allow insight into the recorded information to competent inspection that is in charge of inspection supervision in this field under the law, as well as to the Ministry upon request, in a manner and in accordance with personal data protection.

Reporting on realisation of gender equality

The law prescribes obligation for employers to prepare annual reports on realisation of gender equality which contain, among the above mentioned filled-in form, the assessment of state regarding the realised gender equality with the employer, including the reasons why the prescribed balance of women and men in employer’s body compositions has not been achieved, if applicable.

Employers are obliged to submit the report to the Ministry no later than 15 January of the current year for the preceding year.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.

By Jovana Milic, Senior Associate, PR Legal

Serbia Knowledge Partner

The oldest full service commercial law firm in Serbia, founded in 1991, JPM with three decades of experience in assisting local and international businesses presence and growth not only in Serbia but throughout the SEE region.

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