Zabrana diskriminacije kandidata za zaposlenje na osnovu bračnog i porodičnog statusa – osvrt na pitanje podataka o ličnosti

Abstract

The principle of equality, which includes the prohibition of discrimination, is one of the basic principles in the field of employment and labor relations. The paper deals with the issue of non-discrimination of job seekers on the basis of marital status and family obligations, in light of the prohibition to collect and process such data. When dealing with this issue, the paper includes the analysis of the provisions of the Labour Law, Prohibition of Discrimination Law, as well as the provisions of the Law on Personal Data Protection. The Labour Law, as a rule, enables the employer to request from the job seeker only data important for performing the job, i.e., prohibits the employer from requesting data regarding marital and family status, as well as conditioning the establishment of employment relationship with a pregnancy test. Nevertheless, certain doubts remain − the question arises as to whether it is also necessary to explicitly introduce into domestic legislation a principle that exists in certain foreign laws, which gives the employee the opportunity not to answer such questions or even to give a false answer, also, from the perspective of the situation in practice, it remains an unresolved issue how to fight against violations of this guarantee, i.e., how to overcome the gap between the normative and the situation in practice. In this light, the paper presents certain proposals regarding the introduction or improvement of mechanisms aimed at protecting job candidates in the aforementioned context.