Employee’s characteristics. Employment discrimination?

    Discrimination (from Lat. – “differentiation”) – in labour law this term denotes the illegal limitation of the rights of job seekers and employees for the reason of any of their qualities that are not business-related. Business-related qualities are the professional competencies and abilities of a person that are necessary to perform certain labour functions.

    As know, on October 12, 2021, President of Belarus Aleksandr Lukashenko signed Decree No. 6 which amends Decree No. 5 dated December 15, 2014 “On Strengthening the Requirements for Managers and Employees of Organizations”. According to the authorities, the document was adopted in order to increase the workforce capacity of state bodies and organizations, as well as to implement the amendments to the Labour Code.

    The Decree establishes the obligation of the executives of state bodies and organizations, when hiring citizens, to request their characteristics from previous places of work, as well as information from the Unified State Data Bank on Offences in relation to candidates for senior management positions.

    The practice of requesting characteristics from previous places of work existed in the country before. This was regulated by both the controversial Decree No. 5 and Article 26 of the Labour Code. The only difference is that it was the employer’s right to request them, but now it’s an obligation. This applies to state bodies and state-owned organizations, i.e., those in which the state owns more than 50 percent of the authorized capital. Note, for example, at the largest enterprises of the country JSC “Belaruskali“, JSC “MTZ – Minsk Tractor Works“, JSC “Minsk Automobile Plant 100% of shares are state property, at JSC “Naftan”  –99.83%, etc.

    The characteristics form is established by Resolution of the Council of Ministers No. 585 dated October 14, 2021 “On the Form of the Characteristics”. It must reflect professional and business qualities (competence, efficiency, diligence, discipline, initiative, the degree of independence in decision-making, the strive to improve their professional level, etc.), moral qualities (responsibility, decency, tactfulness, benevolence, kind heartedness, etc.), the participation of the employee in the social life of the team, his/her interaction with the employer, the trade union organization to address topical issues of the organization.

    Characteristics sent at the request of state-owned organizations must reflect information about the attitude towards state and public institutions, the constitutional order, about actions taken against the management and public safety procedure, as well as the presence of anti-state manifestations of the employee when at work.

    Thus, the requirements for preparing characteristics contain many points that are not related to the business qualities of the employee and are not conditioned by the specifics of his/her job function, which leads to discrimination in the hiring process.

    At the same time, it should be noted that international and national labour legislation prohibits discrimination in the field of labour relations. ILO Convention 111 concerning Discrimination in Respect of Employment and Occupation specifies that the term “discrimination” includes any distinction, exclusion or preference made on the basis of race, colour, gender, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment of occupation.

    According to Art. 14. Labour Code of the Republic of Belarus: Discrimination – i.e., restriction of labour rights or obtaining any benefits depending on gender, race, national and social origin, language, religious or political beliefs, participation or non-participation in trade unions or other public associations, property or official status, age, place of residence, physical or mental disabilities that do not interfere with the performance of the relevant labour duties, other circumstances not related to business qualities and not due to the specifics of the employee’s labour function, – is prohibited.

    It needs to be pointed out that the description must reflect the employee’s interaction with the trade union organization. Evidently, this refers to compulsory membership in the pro-government trade unions of the FPB (Federation of Trade Unions of Belarus). We can say with reasonable confidence that the indication of membership in the BKDP independent trade unions will entail a refusal of employment by state-owned organizations.

    In conclusion, we would like to emphasize that Decree No. 6 is a new step by the authorities to limit labour guarantees; it contains a cynical form of employment discrimination in state organizations, which will entail a large-scale prohibition on professions for political reasons.

     

    BKDP National Lawyer

    Elena Eskova

    09.11.2021