OPINION

The opinion was issued regarding the complaint of A. A. against the company B. B, due to discrimination based on conviction. In the complaint, it was stated that the complainant was asked in the electronic correspondence regarding the conclusion of the work and employment contract to submit, among other documents, a certificate from the criminal records that he has not been convicted. In the statement of the company, it was stated, among other things, that the submission of a certificate of no criminal record was not a condition for employment, but that it serves the employer to assess security risks and manage the authorities of employees. It was further stated that the company has the status of an authorized business entity approved by the Customs Administration, as well as that one of the criteria for approval of this status, in accordance with Article 28 of the Customs Law, are the appropriate safety and security standards, which are considered to be met if the applicant demonstrates that it takes appropriate measures to ensure the safety and security of the international supply chain, including the physical integrity of the area and access control, logistics processes and the handling of certain types of goods, the screening of personnel and the identification of its business partners. The Law on Prohibition of Discrimination and the Labor Law prescribe that indirect discrimination exists if, by applying an apparently neutral provision or practice, a person, due to their personal characteristics, is or could be placed in a disadvantageous position compared to other persons, unless this is justified by legitimate goal, and the means to achieve that goal are appropriate and necessary. the course of the proceedings, it was determined that the company has a justified legitimate goal to check the criminal record of the candidate with whom it wants to establish a working relationship, in order to fulfill the legal requirements to achieve the status of an authorized business entity. In the course of further analysis, it was determined that the means by which that goal is achieved is not appropriate and necessary, that is, that the goal can be achieved by using another means. Namely, the provisions of Article 102, para. 3 and 4 of the Criminal Code stipulates that data from criminal records can, upon reasoned request, be given to a state authority, company, other organization, or entrepreneur, if the legal consequences of conviction or security measures are still ongoing and if there is a justified interest based on law, and that no one has the right to ask a citizen to submit proof of his conviction or non-conviction. In this regard, the company had at its disposal the legal possibility to request a check of data from the criminal records in accordance with the Criminal Code, without asking the complainant to submit a certificate from his criminal record. The fact that the complainant refused to conclude an employment contract after he was asked to submit a certificate from his criminal record. in this particular case, is not relevant, given that the Law on Prohibition of Discrimination stipulates that indirect discrimination exists even if an apparently neutral practice could put a person in a disadvantageous position due to their personal characteristics. The Commissioner issued the opinion that the company B. B., by requesting from A. A. to submit a certificate from the criminal record that he has not been convicted for the purposes of employment, violated the provisions of Article 7 of the Law on Prohibition of Discrimination, in relation to Article 19 of the Labor Law. That is why a recommendation was given to the company B. B. to send a written apology to A. A., as well as that in the future, when performing tasks from their activity, they do not violate the provisions of anti-discrimination regulations.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković