In her letter to the House of Representatives of 11 July 2019, State Secretary of SZW announced that, after the summer of 2019, she would like to submit a bill to the Council of State with the aim of combating labour market discrimination. This proposal has consequences for the recruitment and selection process of employers and for parties such as recruitment and selection agencies and online platforms that provide such services to employers. To this end, the Working Conditions Act and the Placement of Personnel by Intermediaries Act are expected to be amended. The legislative amendment to the Working Conditions Act has the necessary consequences for employers, because for the time being they are only concerned with regulations to prevent discrimination in the workplace. As a result of the bill, the employer will also have to draw up a policy to prevent discrimination among applicants. The Inspectorate SZW will supervise compliance with these legislative changes. If the new legislation is violated, this can lead to administrative enforcement. In this blog post, we discuss what the amendment of the working conditions legislation means for employers and parties involved in recruitment and selection.
Contents of the intended legislative changes
After the summer of 2019, amendments to the law will be introduced into the procedure that ensure that employers and intermediaries (such as recruitment agencies, assessment agencies and online platforms) have to take measures to combat labour market discrimination in their recruitment and selection policy (religion, belief, skin colour, etc.). It is expected that the Working Conditions Act and the Workers Allocation Act will be amended accordingly.
The Working Conditions Act currently contains the obligation for employers to develop policy aimed at preventing or limiting discrimination within the framework of the psychosocial workload (PSA). This policy relates to employees who carry out work on the shop floor and therefore not to potential new employees who apply for a job. The intended amendment of the law therefore leads to a considerable extension of the scope of the Working Conditions legislation, because discrimination by employers must also be prevented ‘at the gate’ by taking the necessary measures within the framework of the recruitment and selection policy. The exact nature of these measures is not yet clear.
The Inspectorate SZW will be charged with the supervision of compliance with the new legislation. The Inspectorate will make use of so-called ‘mystery calls’ and ‘mystery guests’. Employers and companies involved in recruitment and selection will have to take into account the fact that supervisors will present themselves as applicants or clients in order to determine, once the legislation has entered into force, whether they are doing enough to prevent discrimination on the labour market.
Non-compliance with labour market discrimination in recruitment and selection will be enforced under administrative law. It goes without saying that the existing enforcement instruments will be linked to this (a requirement for compliance or an administrative fine). It should also be taken into account that enforcement activities may be made public. In her letter to the House of Representatives, the State Secretary notes that the decision on the publication of data relating to labour market discrimination is prepared separately.
Timing of legislative proposal to combat labour market discrimination in recruitment and selection
It remains to be seen exactly how the legislator will ensure that labour market discrimination is prevented in the recruitment and selection process. After the summer of 2019, more will be known about this when the State Secretary sends her legislative proposals to the Council of State for advice. It is clear, however, that if the working conditions legislation will regulate the recruitment and selection process, this will entail a considerable expansion of the scope of the Working Conditions Act for employers. As a result, the health and safety rules not only apply to employees and employees within a company or institution, but soon also ‘at the gate’, i.e. to applicants who register with employers for a new job.
Date: 13 August 2019
Authors: Christien Saris, Bente van Dijk & Francisca Ribeiro Bártolo