No. 021-02-     /2018-02   Date:  1 June 2018

Acting within the framework of legally prescribed competencies [1] to monitor the implementation of the laws concerning the prohibition of discrimination and recommend measures for the achievement of equality to public authority bodies and other persons, the Commissioner for the Protection of Equality sends to the ______________ court in _______________________

RECOMMENDATION ON MEASURES FOR THE ACHIEVEMENT OF EQUALITY

The Commissioner for the Protection of Equality recommends to the __________court in ___________:

– When deciding on the promotion of civil servants employed in the _________ court, take into consideration as successive grades those grade obtained in the years in which a women civil servant was assessed and not count the year in which she was not assessed due to taking pregnancy or maternity leave or absence from work for child care, that is, a series of grades eligible for promotion should not be interrupted because the women civil servant was not assessed due to taking pregnancy or maternity leave or absence from work for child care.

No appeal or any other legal remedy is allowed against this recommendation on measures for the achievement of equality, since the recommendation does not decide on the rights and obligations of legal entities.

Statement of reasons

Acting upon several complaints by men and women citizens, the Commissioner for the Protection of Equality discovered that in certain courts, when deciding on the promotion of their employees, in situations when, in accordance with the law, civil servants are not assessed for the calendar year in which they were absent from work for more than six months due to taking pregnancy or maternity leave or absence from work for child care, the employer interrupts a series of successive grades eligible to promotion, which results in the absence of promotion of women civil servants. In this way, absence from work related to pregnancy, childbirth and child care negatively affects the labour and legal status of women when they return from leave due to pregnancy, maternity leave or absence from work for child care.

Prior to the commencement of the analysis, the Commissioner for the Protection of Equity points out to the key international and domestic acts related to this matter.

The Constitution of the Republic of Serbia[2] in Article 60(5) prescribes that women, youth and persons with disabilities should be provided with special protection at work and special working conditions, while Article 66(1)(2) stipulates that the family, mother, single parent and child in the Republic of Serbia enjoy special protection, and that the mother is provided with special support and protection before and after childbirth. Article 21 of the Constitution of the Republic of Serbia prescribes the prohibition of discrimination, directly or indirectly, on any ground, and Article 16 of the Constitution prescribes that the state guarantees the equality of women and men and develops a policy of equal opportunities.

The Convention on Equal Opportunities and Treatment for Men and Women Workers (Workers with Family Responsibilities) No. 156 from 1981[3] applies to men and women workers who have responsibilities towards children they support and when those responsibilities limit their ability to engage economically and progress. Member States committed to make it possible, as a national policy goal, for these persons to exercise all employment rights without discrimination.

The Maternity Protection Convention of the International Labour Organisation No. 183 from 2000[4] stipulates the obligation of each member state to take measures to ensure that maternity is not a source of discrimination in the field of ​​labour relations.

Constitutional prohibition of discrimination is elaborated in more detail by the Law on the Prohibition of Discrimination[5] which regulates the general prohibition of discrimination by stipulating that everyone is equal and enjoys the same position and equal legal protection, regardless of their personal characteristics, and that everyone is obliged to respect the principle of equality. According to Article 2(1)(1) of this Law, discrimination is any unwarranted discrimination or unequal treatment, i.e. omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin colour, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics. The Law on the Prohibition of Discrimination defined special cases of discrimination. Article 16 prescribes that it is forbidden to exercise discrimination in the field of labour, or to violate the principle of equal opportunity for gaining employment or equal conditions for enjoying all the rights pertaining to the field of labour, such as the right to employment, free choice of employment, promotion, professional training and professional rehabilitation, equal pay for work of equal value, fair and satisfactory working conditions, annual leave, education, joining a trade union and protection from unemployment. The right to protection against discrimination referred to in paragraph 1 of this Article shall be enjoyed by a person who is employed, a person doing temporary or occasional work, or working on the basis of a contract of service or some other kind of contract, a person doing additional work, a person performing a public function, a member of the army, a person seeking employment, a student or pupil doing work, a person undergoing professional training and advanced training without concluding a contract of employment, a volunteer or any other person who works on any grounds whatsoever. Further, Article 20 of this Law stipulates that discrimination on the grounds of gender is considered to occur in the case of conduct contrary to the principle of equality of genders, i.e. the principle of observing the equal rights and freedoms of women and men in the political, economic, cultural and other aspects of the public, professional, private and family of life. The same article prohibits the denial of right to grant privileges, be it publicly or covertly, pertaining to gender.

The Law on Gender Equality[6] stipulates that gender-based discrimination is any unjustified differentiation or unequal treatment or failure to treat (exclusion, restriction or prioritising) aimed at hindering, jeopardising, preventing or denying exercising or enjoyment of human rights and freedoms to a person or a group of persons in the field of politics, economy, social, cultural, civil, family life and other fields. Article 16(2) of the Law on Gender Equality explicitly stipulates that absence from work due to pregnancy and parenthood must not be any barrier to promotion to a higher rank, advancement or professional training.

The Labour Law[7] in Article 18 prohibits the direct and indirect discrimination of persons seeking employment as well as employees with regard to gender, birth, language, race, colour of skin, age, pregnancy, health status, disability, national affiliation, religion, marital status, family responsibilities, sexual orientation, political or other belief, social origin, property status, membership in political organisations, trade unions or any other personal characteristic, whereas discrimination against advancement at work is prohibited by Article 20(1)(4) of this Law.

The Law on Civil Servants[8] in Article 83(2) stipulates that a civil servant who has worked less than six months in a calendar year, regardless of the reason, is not assessed, whereas Article 87 stipulates that the civil servant is promoted by transferral to a directly higher-ranking executive job position or by appointment to the appointed position or higher-ranking appointed position, in the same or another authority, but also by transferral to higher pay scale without changing the job position in accordance with the law regulating salaries in state authorities. Article 88, inter alia, stipulates that the manager may transfer a civil servant to a directly higher-ranking executive job position if he or she is at least two consecutive times graded with “exceptional distinction” or for four consecutive times with grade “distinction”.

Article 16 of the Law on Salaries of Civil Servants and General Service Employees[9] prescribes that the civil servant who has been for two consecutive years graded with “exceptional distinction” advances for two pay scales. The civil servant who has been for two consecutive years graded with “distinction” or with grade “exceptional distinction” and “distinction”, regardless of their order, advances for one pay scale. The civil servant who has been for three consecutive years graded with “good” or with grade “good” and “distinction”, regardless of their order, advances for one pay scale.

The National Strategy for Gender Equality for the period 2016-2020[10], with the Action Plan for the period 2016-2018, sets as one of the objectives increased equality of women and men with the application of the policy of equal opportunities. Improvement of the economic position of women and their status on the labour market is set as a special objective.

Anti-discrimination regulations prohibit any unjustified differentiation or unequal treatment based on a personal characteristic, including gender and marital and family status. The Law on Gender Equality in Article 16 explicitly and unequivocally stipulates that absence from work due to pregnancy and parenthood must not be any barrier to promotion to a higher rank, advancement or professional training. In view of the above stated, it is certain that by prescribing conditions for the advancement of civil servants, the legislator’s intention was not to put women civil servants who take pregnancy or maternity leave or absence from work for child care in an unfavourable position.

In view of the stated regulations, the Commissioner for the Protection of Equality points out that when promoting a civil servant, take into account civil servants’ grades in the series of grades for the years in which they are assessed and do not count the year in which they were not assessed due to pregnancy or maternity leave or absence from work for child care. Consecutive years are the years in which the civil servant was assessed, which may be related to calendar years in cases where there was no discontinuation of the assessment or of years immediately preceding or following the year in which the civil servant was not assessed. Also, the years in which the work of civil servants was assessed in the calendar years preceding the year in which the civil servant was exempted from assessment, can not be annulled because the civil servant was not assessed in one year. In case when making a decision on the promotion of women civil servants, a series of grades eligible for promotion was interrupted because the women civil servant was not assessed due to taking pregnancy or maternity leave or absence from work for child care, such practice would be contrary to the Constitution and anti-discrimination regulations. Additionally, if the grades received before and after taking pregnancy or maternity leave or absence from work for child care are not counted in the assessment as consecutive grades of the women civil servant, this would lead to the inability of the women civil servants to advance at least next two years after returning to work.

The Commissioner for the Protection of Equality points out that absence from work due to pregnancy and parenthood should not be a barrier to promotion to a higher rank, advancement or professional training. The employer is obliged to ensure that absence from work due to pregnancy and parenthood does not negatively affect the labour and legal status of women, as well as to make decisions based on objective criteria such as professional skills, knowledge, working abilities and the like. Otherwise, employed women who decide to have a baby will receive a message that they are at risk of being in some way degraded after returning to work, regardless of their achievements at work and the efforts they made before taking pregnancy or maternity leave or absence from work for child care.

In view of all the stated, and in line with Article 33(9) of the Law on the Prohibition of Discrimination, the Commissioner for the Protection of Equality sends a recommendation on measures for the achievement of equality.

[1] Law on the Prohibition of Discrimination (“Official Gazette of the RS“, No. 22/09), Art. 33(1)(7)(9)

[2]“Official Gazette of the RS ”, No. 98/06

[3] “Official Journal of the SFRY”, No. 7/87

[4] Law on Ratification of the Maternity Protection Convention of the International Labour Organisation No. 183  (“Official Gazette of the RS – International Agreements”, No. 1/10), Article 8(2)

[5] “Official Gazette of the RS ”, No. 22/09

[6]  “Official Gazette of the RS ”, No. 104/09

[7] “Official Gazette of the RS ”, No. 24/05, 61/05 54/09 32/13, 75/14, 13/17 (decision of the Constitutional Court), 113/17

[8] “Official Gazette of the RS ”, No. 79/05, 81/05, 83/05, 64/07, 67/07, 116/08, 104/09, 99/14, 94/17, 76/17-CС

[9] “Official Gazette of the RS ”, No. 62/06, 63/06 – corr, 115/06 – corr, 101/07, 99/10, 108/13 and 99/14

[10] “Official Gazette of the RS“, No. 4/16