Monitoring discrimination when recruiting and selecting employees

Equal opportunity in the job market is not yet a given for everyone in the Netherlands; unfortunately, discrimination when recruiting and selecting new employees still occurs. The bill to oversee equal opportunities for recruitment and selection (in Dutch: Wetsvoorstel toezicht gelijke kansen voor werving en selectie) seeks to change this. It aims to create equal opportunities in the recruitment and selection process and to prevent discrimination in the labor market. The most important part of this bill is that employers and intermediaries must adopt a procedure ensuring equal treatment and preventing discrimination on the labour market.

Background and purpose of the bill

The bill is part of a wide range of measures and activities to promote equal employment opportunities and fair assessments based on knowledge and skills. It specifically looks at equal opportunities for all in the context of recruitment and selection and requires employers and intermediaries to operate without making unjustified distinctions, such as distinction based on religion, sex, nationality, disability, chronic illness and/or age.

The monitoring of recruitment and selection policies should encourage employers and intermediaries to adopt policies aimed at recruitment and selection that provide equal opportunities for all. The idea is that a written “procedure” will stimulate transparency, conscious behaviour and informed choices, rather than automatic, unconscious behavior where biases may play a role.

Procedure: what should it look like?

If enacted into law, the bill will require organisations with 25 employees or more to adopt a written procedure.  Although no specific details are given of what the procedure should look like, the bill’s Explanatory Memorandum does provide some guidance:

  1. the procedure must show that the employer or intermediary is aware of the risk of direct or indirect discrimination;
  2. the procedure should reflect the process of vacancy-filling and should include activities (interventions) to prevent discrimination;
  3. the procedure must show that it is (a) based on job requirements relevant to the position, (b) transparent and verifiable, and (c) systematic.

Finally, all parties should have insight into the procedure.

Inform employees in relevant positions

The employer and intermediary would be obliged to inform the employees involved in the recruitment and selection process about the risks of labour market discrimination and about the measures taken to prevent it.

Duty to verify when outsourcing recruitment and selection

The bill also provides for the situation where employers have outsourced the recruitment and selection to external parties. In those cases, employers have a duty to verify: the employer must be able to guarantee that the external party has a procedure in place (as described above).

The works council’s right of consent

Employers that have a works council would be required to submit the procedure to the works council for consent, as it can be regarded as a regulation in the field of recruitment policy within the meaning of the Dutch Works Councils Act (Wet op de ondernemingsraden).

Compliance; sanctions imposed by the Netherlands Labour Authority

The Netherlands Labour Authority (Nederlandse Arbeidsinspectie) would verify whether employers and intermediaries have adopted a procedure and may impose sanctions if employers do not comply with their obligations. The NLA would first demand compliance, if necessary followed by a fine that will be published and may therefore cause reputational damage.

Time frame

The bill is currently being debated in the Dutch House of Representatives. To enable employers to draw up a procedure and, if required, submit it to the works council for consent, an implementation period will be applied of at least nine months after the publication of the Act. We will keep you informed.

Petra Greuter (pg@clintlegal.com / +31 20 820 0330)