06. Jul 2014, 110-00-1/2014-02
MINISTRY OF HEALTH
Zoran Lončar, Minister
Dear Mr. Lončar,
Acting within the competencies prescribed in Art. 33. of the Law on Prohibition of Discrimination, and bearing in mind your authority to give consent to the decisions on the approval of specializations and sub-specializations made by directors of medical institutions and founders of private practices, I wish to point out that some health institutions, when prescribing criteria for referral to specializations, place candidates in an unequal position on the basis of age.
In fact, during one of the proceedings conducted before the Commissioner for Protection of Equality, it was determined that the Rulebook on professional development of the Health Center “S.” prescribes the following criteria for the referral to specialization and sub-specialization: the average grade from the university, work experience, work performance/work characteristics and age. Scoring candidates according to these criteria, was as follows:
– the average grade from the university – the candidate receives as many points as was his average grade during the studies;
– work experience after passing the professional exam – candidate gets 1 point for work experience up to 3 years, 2 points for work experience from 3 years to 6 years and 3 points for work experience over 6 years;
– work performance work characteristics – the candidate can receive a maximum of 5 points, the assessment is made by the unit chief;
– age – candidates who, in the competition year, are up to 35 years old receive 5 points, candidates who are 36-37 years old receive 4 points, candidates who are 38-39 years old receive 3 points, candidates who are 40 years old receive 2 points and candidates who are more than 40 years old receive 1 point.
The analysis of criteria relating to age of candidates with respect to Law on Prohibition of Discrimination and other relevant regulations, has shown that the setting of the criteria and the scoring method, apparently placed in an unequal position persons who are more than 40 old compared to those who are less than 40 years old. By setting up the scoring method which, without a justifiable reason, gives a higher number of points to a younger candidate, than to a candidate who is over 40 old, places in an unequal position candidates who are over 40 years old in comparison to candidates have are less than 40 years old, because they will get fewer points on the basis of age regardless of the professional qualifications.
Having in mind the goal and the consequences that this method of scoring the age of the candidates causes, it can be concluded that age is neither a real nor a decisive condition for referral to a specialization, given the nature and characteristics under which specialization is obtained, as well as the conditions under which it is performed. Therefore, the analysis showed that the criteria relating to age and scoring according to this criteria, has no objective and reasonable justification, because prescribing this criteria is not justified, neither from the aspect of the goal, nor from the aspect of the consequences caused.
Also, I have learned that other medical institutions in Serbia have set up a similar practice, prescribing criteria concerning the age of the candidate when referring them to a specialization. I’m at liberty to point out that for the acquisition of the specialist training in medicine or dentistry, as well as for other forms of professional development, age of the candidate is not crucial, because a person of any age can start and end specialization equally competently and adequately, if they meet other requirements relating to education and work experience.
It is well known that the people seeking specialization are often a deficient profile in Serbia, and that for a period of time competitions for specializations and sub-specializations had not been advertised, and it is evident that some potential candidates have not been able to compete when of age that gave them preference. Keeping in mind the specifics of this type of training, i.e., the inability to acquire a specialization autonomously and independently of the medical institution, which is the case with the master or doctoral studies, the medical institution must pay special attention to allow all candidates to be evaluated on an equal basis when prescribing the criteria. It should be noted that Article 184 para. 9 and 10 of the Law on Health Care, prescribe that a health worker is obliged to conclude a contract with the health institution on rights, obligations and responsibilities during the vocational training in the course of a specialization and sub-specialization, and is obliged to spent double the period of time of the period of specialization or sub-specialization employed at the medical institution. Bearing in mind that the Law itself prescribes the contract governing the mutual rights and obligations of health workers and health institutions facilities, with the obligation of health workers to spent double period of time employed at the health institution from the period of specialization, indicates that these provisions provide sufficient guarantees for health institutions that they will benefit from investments in the health workers to whom they approve specialization, regardless of his/her age.
Let me remind the Constitution of the Republic of Serbia, prohibits any discrimination, directly or indirectly, on any grounds, particularly on race, gender, national origin, social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability. The constitutional prohibition of discrimination is further elaborated in the Law on the Prohibition of Discrimination, which defines discrimination as any unjustified differentiation or unequal treatment, or omission (exclusion, restriction or preference), as compared to individuals or groups as well as members of their families, or people close to them, in an overt or a covert way that is based on race, color, ancestry, citizenship, nationality or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial status, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organizations and other real or presumed personal characteristics. The provision of Art. 16 para. 1 of the Law on the Prohibition of Discrimination prohibits discrimination in the field of labor or violation of equal opportunities for employment or enjoyment under equal conditions of all rights in the field of labor, while Art. 23 para. 1 prescribes prohibition of discrimination on the grounds of age.
Finally, I note that health institutions have the full freedom to independently, in accordance with current regulations and on the basis of objective criteria, decide on the selection of the persons who they will refer to specializations, assessing their expertise, competencies and abilities. What health institutions should not do is to set the conditions for referring to a specialization concerning the personal qualities of candidates, which are not a real and decisive condition for performing the work, given the nature and particularity of the work and the conditions in which it is performed. Such behavior is unlawful and constitutes a violation of imperative regulations prohibiting discrimination, which are binding for all legal entities.
For this reason, I expect that you will use your legal authority and ensure that health institutions, when determining the criteria for referral to specialization, do not set criteria concerning the years of life of the candidates.
Please inform me about the measures and activities you have taken to implement this recommendation within 30 days.
With sincere appreciation,
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Dr. Nevena Petrušić