New requirements for companies' reporting on equality and non-discrimination in the workplace

Introduction
Prohibition of discrimination
Activity obligation
Reporting obligation
Board responsibility
Enforcement
Published guidelines
Practical consequences of ARP regulations

Introduction

Public and private enterprises of a certain size are subject to a statutory activity and reporting obligation relating to equality and non-discrimination (ARP). The reporting obligation applies from the financial year 2020 onwards. Many companies will have to spend time and resources on implementing sufficient systems and routines to comply with the new rules.

The activity and reporting obligation is regulated in the Gender Equality and Discrimination Act (Act 51 of 16 June 2017), which imposes a mandatory working method on employers that includes documenting and managing risks of discrimination and obstacles to gender equality within companies. The work must take place in collaboration with employee representatives. Companies must document the gender equality work and report on the situation on an annual basis.

The regulations apply to:

• all public enterprises;
• all private enterprises that regularly employ more than 50 employees; and
• all private enterprises that regularly employ between 20 and 50 employees, when one of the working life parties in the enterprise so requires.

The rules will contribute to fulfilling the Gender Equality and Discrimination Act's purpose of promoting equality and preventing discrimination. The regulations aim to prevent gender discrimination, especially with respect to pay and remuneration.

This article provides an overview of the regulations.

Prohibition of discrimination

The Gender Equality and Discrimination Act prohibits employers from discriminating on the basis of:

• gender;
• pregnancy;
• parental leave or adoption;
• care duties;
• ethnicity;
• religion;
• outlook on life;
• disability;
• sexual orientation;
• gender identity;
• gender expression; and
• other significant matters relating to a person.

By 'discrimination', the Gender Equality and Discrimination Act refers to direct or indirect discrimination which has no justifiable basis. Justifiable discrimination presupposes three things – namely:

• there must be a justifiable purpose;
• discrimination must be necessary to achieve the purpose; and
• the discrimination must not be disproportionately intrusive towards the person or persons being discriminated against.

Justifiable discrimination also presupposes that the characteristic is of decisive importance for the performance of the work or profession.

The prohibition of discrimination covers all aspects of employment, including:

• job ads;
• employment;
• relocation;
• promotions;
• training;
• skills development;
• pay and working conditions; and
• termination of employment.

Activity obligation

Four-step procedure
Pursuant to the ARP regulations, employers must follow a specific four-step procedure – namely, they must:

• investigate whether there is a risk of discrimination or other obstacles to equality, including documenting wage conditions by gender and the use of involuntary part-time work every other year;
• analyse the causes of identified risks;
• implement measures that are suitable for counteracting discrimination and contributing to increased equality and diversity in the business; and
• evaluate the results of the work according to the first and third points above.

Step 1: examine risks
Employers must examine the risk of discrimination or other obstacles to gender equality in their companies.

Employers must examine the following factors relating to gender equality, where the gender share must be documented for each of the conditions:

• the company's gender balance must be documented every other year;
• a salary survey by gender must be conducted every other year;
• the use of involuntary part-time work must be documented every other year;
• the proportion of employees who work part-time must be documented every year;
• the proportion of employees who are temporarily employed must be documented every year; and
• the average taking of parental leave must be documented every year.

The gender balance documentation must include the company's total gender distribution and the gender distribution divided into the respective job categories.

The survey of wage differences between women and men must include employees' job categories. Both ordinary remuneration and allowances must be included in the wage statistics. Any differences can be stated in percentages or amounts. In connection with the salary survey, companies should prepare documentation that defines the various job categories in the company, if this is unavailable.

The Gender Equality and Discrimination Act defines 'involuntary part-time' work as part-time work where the position holder wants and is available to work more. This can be documented, among other things, through employee interviews or surveys.

Employers must also document the general risk of discrimination in their companies. Employers must examine whether there are differences that objectively can indicate that there is unreasonable discrimination.

The documentation work will also seek to uncover more invisible obstacles to gender equality (eg, attitudes, prejudices and structures). The Gender Equality and Discrimination Act contains examples of relevant questions that can serve as a starting point for the surveys.

Relevant data sources for companies will include:

• employee surveys;
• employee interviews; and
• a review of internal guidelines and routines.

Step 2: analyse causes
Employers must assess the causes of identified risks and obstacles. Employers and employee representatives must discuss the background for the actual conditions or differences that exist, including whether there may be a connection with the discrimination grounds under the legislation.

It is only the employers' matters that are to be considered – matters relating to individuals are not to be considered.

Step 3: implement measures
Employers must implement relevant measures that are suitable for counteracting discrimination within their companies.

Which measures will be necessary depends on the documented risks and the reasons for these. The Equality and Discrimination Act guides that employers are not obliged to implement disproportionately costly measures.

Step 4: evaluation of results
Employers must assess the results of the findings according to the previous steps, including deciding on the need to implement new measures.

Ongoing work
The work process according to the ARP regulations must take place on an ongoing basis.

Documentation
Companies' work in accordance with the ARP regulations must be documented. Documentation should be prepared in parallel with the work process, so that all relevant assessments that have been made can be substantiated. Written documentation may limit any discrepancy between employers and the authorities afterwards.

Pursuant to the ARP regulations, the work must be carried out in collaboration with employee representatives. Therefore, employers should record meetings that they have with employee representatives in connection with gender equality work.

General duty to provide information
In accordance with specified conditions, employees and their representatives, the Equality and Anti-discrimination Tribunal, the equality and anti-discrimination ombud and researchers have the right to access documentation on companies' gender equality work.

Reporting obligation

In general
On the basis of the gender equality work described above, and in accordance with the ARP regulations, companies must report on:

• the actual state of gender equality in the enterprise; and
• what has been done to fulfil the activity obligations.

The Gender Equality and Discrimination Act provides further instructions on the scope of the reporting. The primary reporting requirements are set out below.

Reporting requirement 1: actual conditions regarding gender equality
Companies must report the following factors relating to gender equality, where the gender share must be documented for each of the conditions:

• the company's gender balance must be documented every other year;
• a salary survey by gender must be conducted every other year;
• the use of involuntary part-time work must be documented every other year;
• the proportion of employees who work part-time must be documented every year;
• the proportion of employees who are temporarily employed must be documented every year; and
• the average taking of parental leave must be documented every year.

Companies can also report on other issues relating to gender equality.

Reporting requirement 2: companies' work according to ARP regulations
Companies must also report on what has been done to fulfil their activity obligation. Thus, companies must report:

• how the company concretely has operationalised the working method according to the ARP regulations;
• what the employer does to safeguard the interests of gender equality in its personnel policy; and
• an overview of planned and implemented measures for gender equality in the business.

Privacy
Personal information cannot appear in the reporting.

Right of access to reports
According to more detailed terms, employees and their representatives, the Equality and Anti-discrimination Tribunal, the equality and anti-discrimination ombud and researchers have the right to access the results of the wage reports.

Where to report?
Companies' reporting must appear in their annual statement or report or in another publicly available document (eg, publication on the company's website).

If the statement is given in another publicly available document and the company has a duty to submit an annual report, the annual report must state where the document is publicly available.

Employers in public enterprises which are not required to prepare an annual statement must include the statement in their annual report or in another publicly available document.

Board responsibility

Companies' boards have the overall responsibility for ensuring that the ARP regulations are complied with.

Enforcement

In the first instance, the equality and anti-discrimination ombud will check companies' compliance with the ARP regulations. In the event of non-compliance, the matter can be appealed to the Equality and Anti-discrimination Tribunal.

The Equality and Anti-discrimination Tribunal has competence to make decisions and order rectification, suspension or other measures in ARP-related cases. In the event of a breach of the regulations, the tribunal may decide on a coercive fine.

Published guidelines

The Directorate for Children, Youth and Families is constantly publishing new information and guidance from the authorities on how employers must comply with the new regulations. Employers should follow the authorities' guidelines and tools relating to ARP and seek legal assistance if needed.

Practical consequences of ARP regulations

Compliance with the ARP regulations presupposes that employers implement the necessary guidelines, principles and procedures for their gender equality work.

Implementation will likely be a cost and resource-intensive process for many companies. However, in the long term, it will be an advantage for companies and their stakeholders that the company has put in place well-functioning, internal frameworks as soon as possible.

For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email (olsby@homble-olsby.no or net@homble-olsby.no). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.