The principle of a shared burden of proof must be followed in discrimination disputes, which means that the person addressing a civil court, the labour dispute committee or the Gender Equality and Equal Treatment Commissioner must provide the facts based on which it can be presumed that direct or indirect discrimination has occurred in their application (§ 4 of the Gender Equality Act, § 8 of the Equal Treatment Act).
In the course of the proceedings, it will be up to the respondent to prove in the proceedings of a court, the labour dispute committee or the Commissioner that there has been no breach of the principle of equal treatment. If the person refuses to provide proof, such refusal will be deemed to be equal to acknowledgement of discrimination by the person (subsection 8 (1) and (2) of the Equal Treatment Act, subsection 4 (2) of the Gender Equality Act).
This principle is used in the resolution of discrimination disputes because it’s usually very difficult for the victim to prove their suspicions exhaustively. For example, in disputes concerning the amount of pay or the choice made in recruitment, the salary details of other employees and the qualifications and skills of the person selected in the recruitment process are known to the employer but not to the applicant. If the employer has not discriminated against the applicant, it can use the information available to refute the allegation. For an employer to be able to defend themselves in the event of a discrimination complaint about the recruitment process, the employer needs to keep the documentation of the recruitment process until the end of the time limit for filing a complaint. CVs don’t have to be kept, but you do need to keep the details and criteria on the basis of which applicants were assessed and on the basis of which the person who was hired had an advantage.
The principle of shared burden of proof described above does not apply in administrative or criminal proceedings.
In addition to the principle of a shared burden of proof described above, if a discrimination dispute is brought before a civil court, the employer must provide data and evidence to support its claims in accordance with the requirements of the Code of Civil Procedure. The differences arising from the Individual Labour Dispute Resolution Act (subsection 4 (4), subsection 20 (31)) must also be taken into account.
The labour dispute committee is an administrative body and it has the right to require the employer to provide evidence and information on the basis of which it establishes the facts relevant for adjudication of the matter (subsection 38 (1) of the Administrative Procedure Act).
In order to give their opinion, the Equality Commissioner has the right to obtain information from any person who may have information relevant to the facts of the discrimination case and to request written explanations of the facts of the discrimination case, as well as documents or copies thereof, within a time limit set by the Equality Commissioner. The right to obtain information includes also information concerning the remuneration calculated, paid or payable to an employee, the conditions for remuneration and other benefits (subsection 17 (4) of the Equal Treatment Act).
The Commissioner may request personalised data. Such data is needed to compare whether people have been treated unequally.
If you feel that you’ve been treated unequally, please contact the Equality Commissioner by e-mail at firstname.lastname@example.org or telephone +372 626 9059. The anonymity of the person is guaranteed when contacting the Commissioner.