The principle of equal treatment is laid down (inter alia) in article 1 of the (Dutch) Constitution and in the equal treatment laws. Citizens who experience discrimination can turn to the Netherlands Institute for Human Rights, the National Ombudsman, and civil courts. The legislative proposal, in addition to already existing equal treatment legislation, aims to prevent discrimination in the labour market, giving everyone an equal chance in the search for a new job. The legislative proposal gives content to the Labour market discrimination action plan of 14 July 2022 (in Dutch only).
Working method, duty to verify and duty to report
To promote equal opportunities in recruitment and selection, the legislative proposal provides for several obligations that will become applicable to employers and intermediaries. These can be categorised as: (i) a working method that employers and intermediaries must have in place, (ii) a duty to verify for both employers and intermediaries, and (iii) a duty to report for intermediaries. Below, we discuss these obligations in more detail.
The legislative proposal requires employers and intermediaries to have a working method in the recruitment and selection process aimed at preventing labour market discrimination. The legislative proposal refers to intermediaries as third parties that provide job placement services or make temporary employees available, such as temporary employment agencies and payroll companies. The legislative proposal does not only cover Dutch employers and intermediaries. Foreign employers who recruit and select personnel in the Netherlands, foreign intermediaries who provide job placement services abroad on behalf of an employer based in the Netherlands or a jobseeker residing in the Netherlands, or service providers who make employees available in the Netherlands will also have to comply with the legislative proposal’s obligations.
The working method should represent the way the process of vacancy filling is organised. The working method must show that the employer c.q. intermediary is aware of the risk of (in)directly prohibited discrimination and how it arises. The working method must also contain measures to prevent discrimination in recruitment and selection. One of the measures is that employees who are substantively involved in the offering and filling of open vacancies, for example HR personnel and/or managers, must be informed by the employer of the risks of labour market discrimination and the employer’s measures aimed at preventing this. The procedure must show that the recruitment and selection procedure: (i) is based on job requirements relevant to the position, (ii) is transparent and verifiable, and (iii) is systematically designed.
Some examples of interventions and methods that could be used in the working method include:
- making recruitment materials neutral (e.g. by using gender-neutral language);
- an initial selection based on objective job requirements;
- structured interviews; and
- objectification of decision-making through multi-person decision-making and/or use of an independent third party.
Intermediaries and employers with more than 25 employees must put the working method and associated measures in writing and ensure that everyone can take note of them. This can be done, for example, by publishing the working method on the website. For employers with 25 employees or less, it is in principle not necessary to put the working method in writing.
Subordinate legislation (order in council) will provide further rules on the working method and process. Employers and employee organisations will play a role in further shaping the working method.
Duty to verify
Further to the working method, the legislative proposal includes two duties of verification for employers and intermediaries:
- employers and intermediaries who outsource all or part of the recruitment and selection to (other) intermediaries or hire in employees must verify that the intermediary has a working method that prevents prohibited discrimination. In the working method, employers and intermediaries must indicate how this duty to verify will be implemented.
- employers and intermediaries who use an automated system must verify that (using) this system does not lead to labour market discrimination. This can be done, for example, by obtaining information about this from the provider of the system.
Employers c.q. intermediaries must keep a document in their records showing that they have complied with the above obligations (where applicable). This document must be kept for at least three years after the end of the calendar year in which the obligation to verify applied. In principle, this obligation does not apply to employers or intermediaries with 25 employees or less.
Duty to report
Finally, an obligation to report discriminatory requests to intermediaries is introduced. Intermediaries must have a procedure on how to deal with requests that (suspected) lead to labour market discrimination. If, even after following the procedure, the request still leads to (suspected) labour market discrimination, this must be reported to the Dutch Labour Inspectorate.
Responsibilities of the Dutch Labour Inspectorate
The Dutch Labour Inspectorate has been appointed as the authority that will monitor compliance with the new legislation. If an employer c.q. intermediary fails to meet its obligations, the Dutch Labour Inspectorate also has enforcement powers. In case of non-compliance, the Dutch Labour Inspectorate will first give the employer c.q. intermediary a chance to remedy this by imposing a demand for compliance. The employer c.q. intermediary is then given a certain period to correct the points on which it has failed. If a follow-up inspection shows that the employer c.q. intermediary has not sufficiently complied with the demand, an administrative fine of the fifth category (standard amount € 4,500, 2023 figures) will be imposed. In principle, the fine will be published to promote compliance with the law, unless this is or may conflict with the purpose of monitoring compliance with the law.
Role of employee representation
Based on article 27 (1)(e) of the Works Councils Act, the works council (WC) has the right of consent for any proposed decision to adopt, amend or revoke a regulation in the field of the recruitment policy. The working method for recruitment and selection can be considered a regulation in the field of the recruitment policy and therefore requires the prior consent of the WC.
If no WC has been set up, but an employee representative body (PVT) is present, then the working method should be discussed during consultation with the PVT. If there is also no PVT in place, the working method can be discussed at the (mandatory) staff meeting at the initiative of the employer or employees.
Date of entry into force
It is currently not yet known when exactly the legislative proposal will enter into force, but it is expected to be in mid-2024. The Senate is now considering the proposal. The preparatory examination by the Senate Committee for Social Affairs and Employment will take place on 4 April 2023. We will of course keep you informed on any further developments.