CMS Expert Guide on discrimination in the workplace in Slovenia

1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?

The main clause banning discrimination in Slovenian law is Article 6 of the Employment Relationships Act (Zakon o delovnih razmerjih – ZDR-1). It contains examples of different personal traits a worker may have and bans any form of discrimination or unequal treatment based upon these traits. It states that the employer must ensure equal treatment for workers regarding employment, promotions, work-related training, education, retraining, pay and other benefits deriving from employment, absence from work, work environment, working hours and termination of contract. However, Paragraph 4 of the same Article does allow the employer unequal treatment, which is not considered discrimination when unequal treatment is crucial for the job in question, the action is proportionate, and it is justified with a legal cause. 

Article 6 of the Employment Relationships Act bans any conduct in the form of unequal treatment based upon personal circumstance, direct discrimination (i.e. any action regarding individuals in equal or similar situations that is based upon personal circumstance and could result in less favourable treatment for one person) and indirect discrimination (i.e. when an apparently neutral act causes a person with a specific personal circumstance to suffer less favourable treatment). An act of indirect discrimination, however, can be justified if it pursues legal cause and the action in question can be considered appropriate and necessary. 

Furthermore, in Article 7 sexual harassment is described as any form of unwanted verbal, non-verbal or physical conduct or behaviour of a sexual nature with the effect or intent to violate a person’s dignity, in particular when it is intended to create an intimidating, hostile, degrading, humiliating, embarrassing or offensive environment. Harassment is described as any unwanted behaviour related to any personal circumstance with the effect or intent of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating, embarrassing or offensive environment. Additionally, the Article equates sexual harassment and harassment with discrimination and bans any form of conduct described above in the workplace, adding that the refusal to partake in such conduct must not be grounds for any further discrimination. 

2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?

Yes, sexual orientation is a protected characteristic. Protected characteristics as stated in Paragraph 1 of Article 6 of the Employment Relations Act include: nationality, race or ethnic background, national or social background, gender, skin colour, medical condition, disabilities, religion or other beliefs, age, sexual orientation, family circumstances, workers union membership, financial situation or any other personal characteristic found in the Employment Relationships Act and the Protection Against Discrimination Act (Zakon o varstvu pred diskriminacijo – ZvarD), which serves as more of a general anti-discrimination act and is not focused on discrimination in the workplace.

The main relationship covered by Article 6 of the Employment Relationships Act is the relationship between employer-employee. However, the ban on discrimination does extend to potential candidates for employment. Additionally, it ensures equal treatment for all workers regardless of the type of contract formed, be it permanent employment, fixed-term employment or part-time employment. Article 62 of the Employment Relationships Act states that posted workers who are employed on agency contracts enjoy the same protection against discrimination from all potential employers. Furthermore, the Employment Relationships Act bans discrimination and ensures equal treatment for foreign workers working in Slovenia (provided that Slovenian legislation provides a higher degree of protection than their country of origin), children in the workplace, students and economically dependent persons (i.e. self-employed persons for which one customer represents more than 80% of their income). 

Notably, the Health and Safety Act expands the definition of a worker to mean any person who performs work for an employer on any other legal basis apart from the employment contract and further states that these persons shall be regarded as employees within the purposes of this law, meaning that the employer must adopt appropriate measures of protection against violence, mistreatment, harassment and any other psycho-social risks these persons may face as stated in Article 24 of the Act.

3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?

If a person suffered discrimination by an employer or potential employer, they could pursue legal action in the form of compensation. The employer is liable for damages under civil law. These include non-pecuniary damages in the form of mental pain suffered as a result of the employer’s inability to provide protection against harassment, sexual harassment or mistreatment as stated in Article 47 of the Employment Relationships Act.

Regarding the level of compensation awarded, Article 8 of the Employment Relationships Act states the court must consider that compensation be effective, proportional to the suffered damages and sufficient to discourage the employer from future violations.

Additionally, anyone at work or in connection with work causing humiliation or intimidation to another employee by means of sexual harassment, psychological violence, mistreatment or unequal treatment is liable to imprisonment as stated in the Slovenian Criminal Code.

4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?

Employers need to adopt measures to prevent, eliminate and manage cases of violence, bullying, harassment (of any kind) and other forms of psycho-social risks in the workplace, which can pose a threat to the health of workers according to Article 24 of the Health and Safety at Work Act. Additionally, pursuant to Article 47 of the Employment Relationships Act, employers are obliged to ensure a working environment that no employee is exposed to sexual or any other harassment by the employer, superiors or co-workers. To meet that purpose, employers must adopt and inform the employees in writing about suitable measures for the protection of employees.

Although there is no specific set of rules regulating the steps or measures that private-sector employers must put in place to prevent sexual harassment (and discrimination) in Slovenia, employers should include definitions and procedural steps in their internal policies in case a complaint is raised. To meet that purpose, the two Articles mentioned combined with Article 10 of the Employment Relationships Act  (which states that the employer can put in place acts that define work organisation and work obligations of employees) are often used as the legal premise for adopting different rulebooks and guidelines for dealing with discrimination in the workplace.

Articles 14 of the Protection from Discrimination Act states that government agencies and local authorities must strive to create the conditions for equal treatment of all citizens. However, there is no legal text that would require employers to adopt any specific acts. This practice has been developed by employers, often through negotiations with workers unions, and not through any specific legislation.

6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?

While there are no specific legal risks or consequences in law for not having a local D&I Policy, there are different online forums in which individuals can share experiences that cause reputational risk. There is also the Advocate of the Principle of Equality whose function is to analyse different cases and situations, and assess whether discrimination has occurred. However, D&I Policy is not an official procedure and the equality advocate can only issue reports and notify competent authorities if discrimination is detected or has already taken place. 

7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?

No. Employers are not required to report on diversity pay or diversity wages. The Slovenian Statistical Office does keep a record of data regarding average pay, average male/female pay, average pay for different education levels, average pay in Sheltered Companies, etc. However, this data is collected by the office for statistical purposes only. 

8. Are there any data protection rules that affect the processing and retention of diversity data, and what do they say?

No. There is no specific legislation in effect to regulate the processing and retention of diversity data. However, the general rule contained in Article 48 of the Employment Relationships Act does extend to any and all data collected by the employer including data on personal circumstances for all employees and potential employees (i.e. candidates). This rule states that the employer can only collect, process, use and forward data to third parties for which the law so prescribes or if it is necessary to ensure fulfilment of rights and obligations deriving from employment.

9. Are there any quotas at board level or below, and if so what do they relate to?

No. No quotas are currently in force for either the board level or below in Slovenian law. There is, however, the possibility for a company to apply for the status of a ‘sheltered company’. This is regulated in the Vocational Rehabilitation and Employment of Persons with Disabilities Act, which allows for companies to apply for the statues once they reach a certain percentage (up to 40% in some types of companies) of disabled persons employed, thus granting them certain exemptions and benefits for their business. 

10. Are there any corporate governance rules that relate to D&I, and what do they say?

There are no corporate governance rules regulated under Slovenian law. However, employers and different organisations often voluntarily adopt D&I Policies. The Ljubljana Stock Exchange (Ljubljanska Borza), for example, issues the Slovenian Corporate Governance Code for Listed Companies, which includes articles on the prevention of discrimination and the promotion of equal opportunities.