OPINION

The opinion was issued in the proceedings regarding the complaint of AA, submitted due to discrimination based on age, against the employer, the Institute of Dentistry BB. In his complaint, he stated that his professional training and advancement were blocked and that the Rulebook on professional development and specialization of health workers and health associates at the Institute of Dentistry BB is against the law. In the statement of the BB Institute of Dentistry, it was asserted that there was no discrimination based on age and that the complaint was unfounded, bearing in mind that the candidate did not meet the condition prescribed by Article 184 of the Law on Health Care, according to which he is obliged, upon completed specialization, to spend a period twice as long as the duration of the specialization in employment. Namely, in the statement, it was specified that on April 4, 2018, an internal competition was announced for the award of a specialization in oral surgery, to which three candidates applied, two of whom met the legal requirements for the award of specialization, while one candidate (Dr. AA ), did not meet the legal requirement for the award of specialization. At that moment, this candidate was over 61 years old, and three years and 10 months remained until he became eligible for an old-age pension (65 years of age). According to further allegations from the statement, on July 21, 2015, an internal competition was announced for the award of a specialization in dental diseases and endodontics, to which only one candidate (Dr. AA) applied, who did not meet the legal requirement for the award of specialization. At that moment, the candidate was over 58 years old, and he had six years and six months left until he became eligible for the old-age pension (65 years of age). During the procedure, it was established that by the Rulebook on professional development and specialization of health workers and health associates ar the Institute of Dentistry BB no. … from February 4, 2010, prescribed criteria on the basis of which the Director of the Institute decides which candidate will be referred for specialization. The age is one of the mentioned criteria. According to the provisions of the regulations, the age of the candidate for the respective specialization is scored by granting 15 points to the candidate between the age of 27 and 35, while for each year of life, starting from 35 years and upwards, the candidate’s number of points is reduced by 0.5 points, and candidates over the age of 45 do not receive any points. At the same time, in the decision of the Institute for Dentistry BB no. … from August 18, 2015, it was stated that the complainant (the only candidate who applied for the competition) was not approved for specialization since he was over 58 years old and has six more years and six months to reach the absolute condition for an old-age pension, which led the decision-maker to conclude that the complainant does not meet the legal requirement for approval of specialization. According to the Commissioner’s opinion, it is evident that the prescription of years of life as a criterion for specialization and determining the method of scoring by which candidates between 27 and 35 years of age receive 15 points, while for candidates after the age of 35 the score is reduced by 0.5 points for each subsequent year of life, and candidates over the age of 45 do not receive any points, results in a reduction of the number of points in proportion to the age, that is, older candidates receive fewer points or no points at all. As the Commissioner pointed out, such provisions are not only demotivating for healthcare workers, since they are aware that with the passing of each year of work, their chances of obtaining a specialization are decreasing, but at the same time, they are also discriminatory, bearing in mind that they (in this particular case, candidates who are over 35 years of age) are denied the opportunity to have their professional knowledge and professional competencies evaluated under equal conditions in the selection process for specialization. Regarding the allegation from the statement of the Institute for Dentistry BB that there was no discrimination on the basis of age, bearing in mind that the candidate did not meet the condition prescribed by Article 184 of the Law on Health Care, it is necessary to take into account the provisions of Article 184, paragraph 1 of the Law on Health Care, which was in force from December 10, 2005, to April 10, 2019, and which prescribed the conditions for professional training – acquisition of specialization. As stated in the aforementioned provision, a healthcare worker and healthcare associate with higher education, who has established an employment relationship for an indefinite period with a healthcare institution, or a private practice, can receive professional training – acquire a specialization, provided that they have completed an internship and passed a professional exam, unless otherwise provided by this Law. The Law further stipulates that a healthcare worker, or healthcare associate, is obliged to conclude a contract with the healthcare institution, or private practice, on rights, obligations, and responsibilities during professional development during specialization or narrower specialization. The obligation of a healthcare worker, or healthcare associate, to spend a period twice as long as the period of specialization, or narrow specialization, in the health institution from the Network Plan, after passing the specialist exam, is prescribed in the provisions of Article 184, paragraph 10 of the aforementioned Law. The cited provision prescribes the obligation of a healthcare worker, or healthcare associate, and not a requirement for professional development – acquiring a specialization. The conditions for professional training – acquisition of specialization are stated in paragraph 1 of the same article of the Law on Health Care. The fact that the complainant may not be able to spend twice as long in employment as the period of specialization is not an obstacle or a condition for the approval of specialization, not only because the aforementioned is not prescribed by Law but also due to the fact that one of the conditions for going into the old-age pension, that is, the age, is a variable legal category that may be subject to changes in the future. Also, the current Law on Health Care explicitly prescribes the possibility for a health worker to spend a shorter period of employment in the health institution, with the obligation to compensate for the costs of specialization. Therefore, the Commissioner issued an opinion that by prescribing criteria that put employees in an unjustified disadvantageous position based on their personal characteristics – age, the Institute of Dentistry BB violated the provisions of Article 6 in connection with Article 16 and Article 23 of the Law on Prohibition of Discrimination. The Institute was recommended to take all necessary measures so that the Management Board of the Institute would harmonize the text of the Rulebook on professional development and specialization of health workers and health associates at the Institute of Dentistry BB no. … from February 4, 2010, with anti-discrimination regulations regarding the criterion for referral to specialization that refers to the age of the candidates, to enable all persons who meet the conditions prescribed by the Law on Health Care to be evaluated equally in competitions for the approval of specializations, to send a written apology to the complainant, as well as to publish the Commissioner’s opinion and recommendation on the bulletin board or other visible place in the Institute’s premises.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković